SEC Filing | Shift Technologies, Inc.

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q/A

(Amendment No. 1)


			(Mark One)
☒			QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
			For the quarterly period ended June 30, 2022
☐			TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
			For the transition period from _______ to _______

Commission file number: 001-38839

Shift Technologies, Inc.

(Exact name of registrant as specified in its charter)


Delaware			82-5325852
(State or other jurisdiction of incorporation or organization)			(IRS Employer Identification No.)

290 Division Street, Suite 400, San Francisco, California 94103-4893 (Address of principal executive offices)

Registrant's telephone number, including area code: (855) 575-6739

Securities registered pursuant to Section 12(b) of the Exchange Act:

Title of each class

Trading

Symbol(s)

Name of each exchange on which registered

Class A common stock, par value $0.0001 per share

SFT

Nasdaq Capital Market

Securities registered pursuant to Section 12(g) of the Exchange Act: None

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer

☐

Accelerated filer

☒

Non-accelerated filer

☐

Smaller reporting company

☒

Emerging growth company

☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒

As of August 8, 2022 the registrant had 84,824,518 shares of Class A common stock outstanding.

EXPLANATORY NOTE

Shift Technologies, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-Q/A (the “Amendment”) to the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2022, which was originally filed with the Securities and Exchange Commission (the “SEC”) on August 9, 2022 (the “Original Report”), to file copies of Exhibits 2.2, 10.4, 10.9, and 10.10 which were included in the exhibit index to the Original Report but not previously filed with the Original Report due to an administrative delay, and to file copies of Exhibits 10.11, 10.12, and 10.13, which were not included in the original exhibit index due to the same administrative delay.

In addition, as required by Rule 12b-15 under the Exchange Act of 1934, as amended (the “Exchange Act”), new certifications by the Company’s principal executive officer and principal financial officer are filed herewith as exhibits to this Amendment, under Item 6 hereof, pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act. Since no financial statements have been included in this Amendment and this Amendment does not contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4 and 5 of the certifications have been omitted. The Company is also not including the certifications required under Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) (Section 906 of the Sarbanes-Oxley Act of 2002), as no financial statements are being filed with this Amendment.

Except as described above, no other changes have been made to the Original Report and this Amendment does not modify or update disclosures in the Original Report and does not reflect subsequent events occurring after the date of the Original Report. Accordingly, this Amendment should be read in conjunction with the Original Report, which continues to speak as of the date of the Original Report, and the Company’s other filings with the SEC. The filing of this Amendment is not an admission that the Original Report, when filed, included any untrue statement of a material fact or omitted to state a material fact necessary to make a statement not misleading.

Table of Contents

ITEM 6. EXHIBITS

EXHIBIT INDEX


Exhibit No.						Description
2.1						Amended and Restated Equity and Asset Purchase Agreement by and among Shift Technologies, Inc., Fair Financial Corp., Fair IP, LLC, and, solely for purposes of Article IV, Article IX and Article X thereof, Cayman Project 2 Limited (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed on May 13, 2022). †
2.2						Agreement and Plan of Merger dated August 9, 2022, by and among Shift Technologies, Inc., Shift Remarketing Operations, Inc. and CarLotz, Inc. (filed herewith). †
10.1						Letter Agreement, dated May 11, 2022, by and between Shift Technologies, Inc. and Cayman Project 2 Limited (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on May 13, 2022).
10.2						Note Purchase Agreement, dated May 11, 2022, by and between Shift Technologies, Inc., the subsidiaries of Shift Technologies, Inc. as guarantors thereto, and SB LL Holdco, Inc., as purchaser (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed on May 13, 2022). †
10.3						Second Amendment to the Employment Agreement by and between Shift Platform, Inc. and Jeffrey Clementz (Incorporated by reference to Exhibit 10.3 to the Company’s Form 10-Q filed August 9, 2022).*
10.4						Third Amendment to the Employment Agreement by and between Shift Platform, Inc. and Jeffrey Clementz (filed herewith).*
10.5						Amended and Restated Retention Bonus Agreement, dated as of June 22, 2022, by and between Shift Technologies, Inc. and Sean Foy (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed on June 24, 2022).*
10.6						Retention Bonus Agreement, dated as of June 22, 2022, by and between Shift Technologies, Inc. and Oded Shein (incorporated by reference to Exhibit 10.2 of the Current Report on Form 8-K filed on June 24, 2022).*
10.7						Shift Technologies, Inc. Employment Inducement Plan (incorporated by reference to Exhibit 99.1 to the Registration Statement on Form S-8 filed on June 30, 2022).
10.8						Form of Time-Based RSU Inducement Award Agreement (incorporated by reference to Exhibit 99.2 to the Registration Statement on Form S-8 filed on June 30, 2022).
10.9						Form of Voting and Support Agreement by and among Shift Technologies, Inc., Carlotz, Inc., and certain shareholders of Shift Technologies, Inc. (filed herewith).
10.10						Form of Voting and Support Agreement by and among Shift Technologies, Inc., Carlotz, Inc., and certain shareholders of CarLotz, Inc. (filed herewith).
10.11						Letter Agreement dated August 9, 2022 by and between Shift Technologies, Inc. and Acamar Partners Sponsor I LLC (filed herewith)
10.12						Letter Agreement dated August 9, 2022 by and between Shift Technologies, Inc. and TRP Capital Partners, LP (filed herewith)
10.13						Amended and Restated Sponsor Letter Agreement, dated August 9,2022, by and among Shift Technologies, Inc., Carlotz Inc. and Acamar Partners Sponsor I LLC (filed herewith)
31.1						Certification of Principal Executive Officer Pursuant to Securities Exchange Act Rules 13a-14(a) and 15(d)-14(a), as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Incorporated by reference to Exhibit 31.1 to the Company’s Form 10-Q filed August 9, 2022).
31.2						Certification of Principal Financial Officer Pursuant to Securities Exchange Act Rules 13a-14(a) and 15(d)-14(a), as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Incorporated by reference to Exhibit 31.2 to the Company’s Form 10-Q filed August 9, 2022).
31.3						Certification of Principal Executive Officer Pursuant to Securities Exchange Act Rules 13a-14(a) and 15(d)-14(a), as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith)
31.4						Certification of Principal Financial Officer Pursuant to Securities Exchange Act Rules 13a-14(a) and 15(d)-14(a), as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
32.1						Certification of Principal Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (furnished with the Original Report).
101.INS						Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document
101.SCH						Inline XBRL Taxonomy Extension Schema Document
101.CAL						Inline XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF						Inline XBRL Taxonomy Extension Definition Linkbase Document
101.LAB						Inline XBRL Taxonomy Extension Labels Linkbase Document
101.PRE						Inline XBRL Taxonomy Extension Presentation Linkbase Document
104						Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)


†			Schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Shift agrees to furnish a supplemental copy of any omitted schedule or attachment to the SEC upon request.
*			Indicates management contract or compensatory plan or arrangement.

Table of Contents

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


			SHIFT TECHNOLOGIES, INC.
			/s/ Oded Shein
			Oded Shein
			Chief Financial Officer
			August 11, 2022

Document


AGREEMENT AND PLAN OF MERGER

by and among:

SHIFT TECHNOLOGIES, INC.,

a Delaware corporation;

SHIFT REMARKETING OPERATIONS, INC.,

a Delaware corporation;

and

CARLOTZ, INC.,

a Delaware corporation

___________________________

Dated as of August 9, 2022

___________________________

Table of Contents

Page


Section 1. Description of Transaction			1
1.1 Merger of Merger Sub into the Company			1
1.2 Effects of the Merger			1
1.3 Closing; Effective Time			1
1.4 Certificate of Incorporation and Bylaws; Directors and Officers			2
1.5 Effect on Capital Stock of the Company			2
1.6 Closing of the Company’s Transfer Books			7
1.7 Exchange of Certificates			7
1.8 Further Action			10
1.9 No Dissenters’ Rights			10
1.10 Tax Treatment			10
1.11 Closing Statements			10
Section 2. Representations and Warranties of the Company			12
2.1 Due Organization; Subsidiaries.			12
2.2 Organizational Documents			13
2.3 Capitalization.			13
2.4 Authority; Binding Nature of Agreement			15
2.5 Non-Contravention; Consents			15
2.6 SEC Filings; Financial Statements			17
2.7 Absence of Changes			18
2.8 Legal Proceedings; Orders			19
2.9 Title to Assets			19
2.10 Real Property; Equipment; Leasehold			19
2.11 Intellectual Property			20
2.12 Material Contracts			22
2.13 Liabilities			25
2.14 Compliance with Applicable Laws			25
2.15 Governmental Authorizations			26
2.16 Tax Matters			26
2.17 Employee and Labor Matters; Benefit Plans			28
2.18 Environmental Matters			32
2.19 Insurance			33
2.20 Takeover Statutes; No Rights Plan			33
2.21 Vote Required			33
2.22 Fairness Opinion			33

A-i


2.23 Advisors’ Fees			34
2.24 Disclosure			34
2.25 No Additional Representations; No Outside Reliance.			34
Section 3. Representations and Warranties of Parent and Merger Sub			35
3.1 Due Organization; Subsidiaries			35
3.2 Organizational Documents			36
3.3 Capitalization			36
3.4 Authority; Binding Nature of Agreement			37
3.5 Non-Contravention; Consents			38
3.6 SEC Filings; Financial Statements; Internal Controls			39
3.7 Absence of Changes			40
3.8 Legal Proceedings; Orders			41
3.9 Title to Assets			41
3.10 Real Property; Equipment; Leasehold			41
3.11 Intellectual Property.			42
3.12 Material Contracts			44
3.13 Liabilities			47
3.14 Compliance with Applicable Laws			47
3.15 Insurance			48
3.16 Takeover Statutes			48
3.17 Governmental Authorizations			48
3.18 Tax Matters			48
3.19 Employee and Labor Matters; Benefit Plans			50
3.20 Environmental Matters			54
3.21 Vote Required			55
3.22 Fairness Opinion			55
3.23 Advisors’ Fees			55
3.24 Disclosure			55
3.25 No Ownership of Company Common Stock			55
3.26 No Additional Representations; No Outside Reliance.			56
Section 4. Covenants			57
4.1 Access and Investigation			57
4.2 Operation of the Company’s Business			57
4.3 Operation of Parent’s Business			62
4.4 Company No Solicitation			65
4.5 Parent No Solicitation			67
Section 5. Additional Agreements			69


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5.1 Form S-4; Proxy Statement; Listing			69
5.2 Company Stockholders Meeting; Company Change in Recommendation			71
5.3 Parent Stockholders Meeting; Parent Change in Recommendation			75
5.4 Employee Benefits			78
5.5 Indemnification of Officers and Directors			80
5.6 Reasonable Best Efforts; Consultation and Notice			82
5.7 Disclosure			83
5.8 Resignation of Officers and Directors			84
5.9 Delisting			84
5.10 Section 16 Matters			84
5.11 Stockholder Litigation			84
5.12 Takeover Statutes and Rights			84
5.13 Reserved.			85
5.14 Certain Corporate Governance and Other Matters.			85
5.15 Monthly Financial Statements			85
Section 6. Conditions Precedent to Obligations of Parent and Merger Sub			86
6.1 Accuracy of Representations			86
6.2 Performance of Covenants			87
6.3 Stockholder Approval			87
6.4 Closing Certificate			87
6.5 No Material Adverse Effect			87
6.6 HSR Clearance			87
6.7 No Injunctions or Legal Restraints			87
6.8 Registration Statement			87
6.9 Listing			87
6.10 Company Cash Amount			87
Section 7. Conditions Precedent to Obligation of the Company			87
7.1 Accuracy of Representations			88
7.2 Performance of Covenants			88
7.3 Stockholder Approval			88
7.4 Closing Certificate			89
7.5 No Material Adverse Effect			89
7.6 HSR Clearance			89
7.7 No Injunctions or Legal Restraints			89
7.8 Registration Statement			89
7.9 Listing			89
7.10 Parent Cash Amount			89


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Section 8. Termination			89
8.1 Termination			89
8.2 Effect of Termination			92
8.3 Expenses; Termination Fees			92
Section 9. Miscellaneous Provisions			96
9.1 Amendment			96
9.2 Waiver			96
9.3 No Survival of Representations and Warranties			96
9.4 Entire Agreement; Counterparts; Exchanges by Electronic Delivery			96
9.5 Applicable Law; Jurisdiction; Waiver of Jury Trial			97
9.6 Disclosure Schedules			97
9.7 Assignability; No Third-Party Beneficiaries			98
9.8 Notices			98
9.9 Cooperation			99
9.10 Severability			99
9.11 Remedies			100
9.12 Construction			100


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Exhibits

Exhibit A - Certain Definitions

Exhibit B-1 - Persons Entering into Support Agreements in favor of Parent and Merger Sub

Exhibit B-2 - Persons Entering into Support Agreements in favor of the Company

Exhibit C - Form of A&R Sponsor Letter Agreement

Exhibit D - Form of Amended and Restated Certificate of Incorporation of Surviving

Corporation


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AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger (this “Agreement”) is entered into as of August 9, 2022, by and among Shift Technologies, Inc., a Delaware corporation (“Parent”), Shift Remarketing Operations, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and CarLotz, Inc., a Delaware corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Exhibit A. Each of Parent, Merger Sub and the Company is referred to herein as a “Party” and collectively as the “Parties.”

Recitals

A. Parent, Merger Sub and the Company intend to effect a merger of Merger Sub with and into the Company (the “Merger”) in accordance with this Agreement and the DGCL. Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly owned subsidiary of Parent.

B. The respective boards of directors of Parent, Merger Sub and the Company have unanimously approved this Agreement and the Merger.

C. To induce Parent and Merger Sub to enter into this Agreement and cause the Merger to be consummated, concurrently with the execution and delivery of this Agreement, (i) each stockholder of the Company listed in Exhibit B-1 is executing a voting and support agreement in favor of Parent and Merger Sub (each such agreement, a “Support Agreement”); and (ii) the Company and Acamar Partners Sponsor I LLC have executed an amendment and restatement of that certain sponsor letter agreement, dated as of October 21, 2020 (the “A&R Sponsor Letter Agreement”), in the form attached hereto as Exhibit C.

D. To induce the Company to enter into this Agreement and cause the Merger to be consummated, concurrently with the execution and delivery of this Agreement, each stockholder of Parent listed in Exhibit B-2 is executing a Support Agreement in favor of the Company.

Agreement

The Parties, intending to be legally bound, agree as follows:

Section 1.Description of Transaction

1.1Merger of Merger Sub into the Company. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company, and the separate existence of Merger Sub shall cease. The Company will continue as the surviving corporation in the Merger (the “Surviving Corporation”).

1.2Effects of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL.

1.3Closing; Effective Time. Subject to Section 1.11(c), the consummation of the Contemplated Transactions (the “Closing”) shall take place by means of a virtual closing through electronic exchange of signatures at 8:00 a.m. (New York time) on the third (3rd) Business Day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Section 6 and Section 7 (other than those conditions which are to be satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions), or at such other place, time or date as Parent and the Company may jointly designate. The date on


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which the Closing actually takes place is referred to as the “Closing Date.” Subject to the provisions of this Agreement, a certificate of merger satisfying the applicable requirements of the DGCL shall be duly executed by the Company in connection with the Closing and, concurrently with or as soon as practicable following the Closing, filed with the Secretary of State of the State of Delaware. The Merger shall become effective at the time of the filing of such certificate of merger with the Secretary of State of the State of Delaware or at such later time as may be specified in such certificate of merger with the consent of Parent (the time at which the Merger becomes effective being referred to as the “Effective Time”).

1.4Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent prior to the Effective Time:

(a)the Certificate of Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to Exhibit D;

(b)the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that the Surviving Corporation’s name therein shall be changed to the Company’s name; and

(c)the directors of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors of Merger Sub immediately prior to the Effective Time, until the earlier of their, death, resignation or removal or until their respective successors are duly elected or appointed and qualified, as the case may be; and

(d)the officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the officers of the Company immediately prior to the Effective Time, until the earlier of their, death, resignation (including any resignation pursuant to Section 5.8) or removal or until their respective successors are duly elected or appointed and qualified, as the case may be.

1.5Effect on Capital Stock of the Company.

(e)Conversion of Company Common Stock and Merger Sub Common Stock. At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company:

(i)subject to Sections 1.5(b), 1.5(c) and 1.7, each issued and outstanding share of Company Common Stock (other than any shares of Company Common Stock to be canceled pursuant to Section 1.5(a)(iii)) shall be converted into the right to receive a number of fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Ratio; and all such shares of Company Common Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist;

(ii)each holder of a Company Stock Certificate or Uncertificated Share shall cease to have any rights with respect thereto, except the right to receive, upon the surrender thereof, the Merger Consideration in accordance with this Section 1.5 and Section 1.7;

(iii)each share of Company Common Stock held in the treasury of the Company immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;


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(iv)each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one (1) fully paid and nonassessable share of the common stock of the Surviving Corporation; and

(v)each share of Parent Common Stock shall remain an issued share of Parent Common Stock and shall not be converted or canceled as a result of the Merger. Each certificate or book-entry share representing any shares of Parent Common Stock as of the Effective Time shall continue for all corporate purposes.

(a)Treatment of Company Equity Awards; Company Warrants; Company Earnout Shares.

(i)Company RSU Awards. Each award of time-based vesting restricted stock units relating to Company Common Stock (excluding the Company Earnout Acquiror RSUs, each, a “Company RSU Award”) that is outstanding as of immediately prior to the Effective Time shall, as of the Effective Time, automatically and without any action on the part of the holder thereof:

(A)if and to the extent such Company RSU Award is or becomes vested at the Effective Time pursuant to its terms, be cancelled and converted into the right to receive a number of shares of Parent Common Stock equal to the product of (1) the number of vested whole shares of Company Common Stock subject to such Company RSU Award immediately prior to the Effective Time and (2) the Exchange Ratio, less applicable Tax withholding, payable promptly following the Effective Time; provided, that notwithstanding anything to the contrary contained in this Agreement, any payment pursuant to this Section 1.5(b)(i)(A) in respect of any such Company RSU Award which constitutes “deferred compensation” subject to Section 409A shall be made on the earliest possible date that such payment would not trigger a tax or penalty under Section 409A; or

(B)if or to the extent such Company RSU Award is not covered by Section 1.5(b)(i)(A) (each Company RSU Award to the extent not so covered, an “Assumed Company RSU Award”), cease to represent a right to acquire shares of Company Common Stock and shall be assumed by Parent and converted automatically into a Parent RSU Award on the same terms and conditions (including applicable vesting provisions) as applied to such Assumed Company RSU Award immediately prior to the Effective Time, except converted into the right to a Parent RSU Award with respect to a number of shares of Parent Common Stock equal to the product of (1) the number of unvested whole shares of Company Common Stock subject to such Company RSU Award immediately prior to the Effective Time and (2) the Exchange Ratio, and rounding such product down to the nearest whole share.

(ii)Company PSU Awards. Each award of performance-based vesting restricted stock units relating to Company Common Stock that is outstanding as of immediately prior to the Effective Time pursuant to its terms (each, a “Company PSU Award”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof:

(A)if and to the extent such Company PSU Award is or becomes vested at the Effective Time pursuant to its terms, be cancelled and converted into the right to receive a number of vested shares of Parent Common Stock equal to the product of (1) the number of whole shares of Company Common Stock subject to such Company PSU Award immediately prior to the Effective Time and (2) the Exchange Ratio, less applicable Tax withholding, payable promptly following the Effective Time; provided, that notwithstanding anything to the contrary contained in this Agreement, any payment pursuant to this Section 1.5(b)(ii)(A) in respect of any such Company PSU Award which constitutes “deferred


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compensation” subject to Section 409A shall be made on the earliest possible date that such payment would not trigger a tax or penalty under Section 409A; or

(B)if or to the extent such Company PSU Award is not covered by Section 1.5(b)(ii)(A) (each Company PSU Award to the extent not so covered, an “Assumed Company PSU Award”), cease to represent a right to acquire shares of Company Common Stock and shall be assumed by Parent and converted automatically into a Parent PSU Award on the same terms and conditions (including applicable vesting provisions) as applied to such Assumed Parent PSU Award immediately prior to the Effective Time, except (1) converted into the right to a Parent PSU Award with respect to a number of shares of Parent Common Stock equal to the product of (x) the number of unvested whole shares of Company Common Stock subject to such Company PSU Award immediately prior to the Effective Time and (y) the Exchange Ratio, and rounding such product down to the nearest whole share and (2) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company PSU Award shall be adjusted to threshold closing share prices of Parent Common Stock determined by dividing (x) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company PSU Award as of immediately prior to the Effective Time by (y) the Exchange Ratio, and rounding such quotient up to the nearest whole cent.

(iii)Company Stock Options. Each Company Stock Option that is outstanding and unexercised as of immediately prior to the Effective Time, whether vested or unvested (each, an “Assumed Company Stock Option”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof cease to represent a right to acquire shares of Company Common Stock and shall be assumed by Parent and converted automatically into a Parent Stock Option on the same terms and conditions (including applicable vesting, exercise and expiration provisions) as applied to such Assumed Company Stock Option immediately prior to the Effective Time, except that (1) the number of shares of Parent Common Stock subject to each Assumed Company Stock Option shall be equal to the product of (x) the number of whole shares of Company Common Stock subject to such Assumed Company Stock Option immediately prior to the Effective Time and (y) the Exchange Ratio, and rounding such product down to the nearest whole share; and (2) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of each Assumed Company Stock Option shall be determined by dividing (x) the per share exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Assumed Company Stock Option immediately prior to the Effective Time by (y) the Exchange Ratio, and rounding such quotient up to the nearest whole cent.

(iv)Company Earnout Shares.

(C)If the transactions contemplated by this Agreement, including the Merger, constitute an “Acceleration Event” (as such term is defined in the SPAC Merger Agreement), (1) Parent agrees that the terms and conditions set forth in Section 3.10(f) of the SPAC Merger Agreement will apply to the transactions contemplated by this Agreement, including the Merger, (2) the Company Common Stock in respect of the Company Earnout Shares will be issued in accordance with Section 3.10(f) of the SPAC Merger Agreement as of immediately prior to the Effective Time and (3) as of the Effective Time, each such share of Company Common Stock will be converted into the right to receive the Merger Consideration pursuant to Section 1.7 of this Agreement. For the avoidance of doubt, such shares of Company Common Stock issued in respect of the Company Earnout Shares, when issued, will be subject to the same exchange procedures as all other shares of Company Common Stock pursuant to Section 1.7 of this Agreement.

(D)If the transactions contemplated by this Agreement, including the Merger, do not constitute an “Acceleration Event” (as such term is defined in the


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SPAC Merger Agreement), each Company Earnout Share that is subject to issuance as of immediately prior to the Effective Time (each, an “Assumed Company Earnout Share”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof, cease to represent a right to acquire shares of Company Common Stock and shall be assumed by Parent and converted automatically into a right to receive Parent Common Stock (each, a “Parent Earnout Share”) on the same terms and conditions as applied to such Assumed Company Earnout Share immediately prior to the Effective Time, except that (1) the number of shares of Parent Common Stock subject to each Assumed Company Earnout Share shall be equal to the product of (x) the number of whole shares of Company Common Stock subject to such Assumed Company Earnout Share immediately prior to the Effective Time and (y) the Exchange Ratio, and rounding such product down to the nearest whole share; and (2) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company Earnout Shares shall be adjusted to threshold closing share prices of Parent Common Stock determined by dividing (x) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company Earnout Shares as of immediately prior to the Effective Time by (y) the Exchange Ratio, and rounding such quotient up to the nearest whole cent.

(v)Company Earnout Acquiror RSUs.

(C)If the transactions contemplated by this Agreement, including the Merger, constitute an “Acceleration Event” (as such term is defined in the SPAC Merger Agreement), (1) Parent agrees that the terms and conditions set forth in Section 3.04(e) of the SPAC Merger Agreement will apply to the transactions contemplated by this Agreement, including the Merger, and (2) as of the Effective Time, each Company Earnout Acquiror RSU shall immediately vest, be cancelled and be converted into the right to receive a number of shares of Parent Common Stock equal to the product of (1) the number of vested shares of Company Common Stock subject to such Company Earnout Acquiror RSU immediately prior to the Effective Time and (2) the Exchange Ratio, less applicable Tax withholding, payable promptly following the Effective Time; provided, that notwithstanding anything to the contrary contained in this Agreement, any payment pursuant to this Section 1.5(b)(v)(A) in respect of any such Company Earnout Acquiror RSU which constitutes “deferred compensation” subject to Section 409A shall be made on the earliest possible date that such payment would not trigger a tax or penalty under Section 409A.

(D)If the transactions contemplated by this Agreement, including the Merger, do not constitute an “Acceleration Event” (as such term is defined in the SPAC Merger Agreement), each Company Earnout Acquiror RSU that is issued and outstanding as of immediately prior to the Effective Time (each, an “Assumed Company Earnout Acquiror RSU”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof, cease to represent a right to acquire shares of Company Common Stock and shall be assumed by Parent and converted automatically into a right to receive Parent Common Stock (each, a “Parent Earnout Acquiror RSU”) on the same terms and conditions (including applicable vesting provisions) as applied to such Assumed Company Earnout Acquiror RSU immediately prior to the Effective Time, except that (1) the number of shares of Parent Common Stock subject to each Assumed Company Earnout Acquiror RSU shall be equal to the product of (x) the number of whole shares of Company Common Stock subject to such Assumed Company Earnout Acquiror RSU immediately prior to the Effective Time and (y) the Exchange Ratio, and rounding such product down to the nearest whole share; and (2) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company Earnout Acquiror RSU shall be adjusted to threshold closing share prices of Parent Common Stock determined by dividing (x) the threshold closing share prices of the Company Common Stock applicable to such Assumed Company Earnout Acquiror RSU as of immediately prior to the Effective Time by (y) the Exchange Ratio, and rounding such quotient up to the nearest whole cent.


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(vi)Company Warrants. At the Effective Time, each Company Warrant shall, automatically and without any required action on the part of the holder thereof, cease to represent a Company Warrant in respect of Company Common Stock and shall be assumed by Parent and converted into a warrant denominated in shares of Parent Common Stock (each, a “Parent Warrant”). The number of shares of Parent Common Stock subject to each such Parent Warrant shall be equal to the product (rounded to the nearest whole number) of (x) the number of shares of Company Common Stock subject to such Company Warrant immediately prior to the Effective Time multiplied by (y) the Exchange Ratio, and the exercise price of each such Parent Warrant shall be equal to the quotient of (1) the per share exercise price of such Company Warrant immediately prior to the Effective Time divided by (2) the Exchange Ratio, which quotient shall be rounded to the nearest whole cent. Except as expressly provided above, following the Effective Time, each such Parent Warrant shall continue to be governed by the same terms and conditions (including vesting terms) as were applicable to the applicable Company Warrant immediately prior to the Effective Time.

(vii)At the Effective Time, Parent shall assume the Company Equity Plans (under which the Parent RSU Awards and Parent Stock Options contemplated by this Section 1.5(b) shall be issued), and the shares of Company Common Stock reserved for issuance thereunder shall be converted to that number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to the product of (i) the number of shares of Company Common Stock available for issuance as of immediately prior to the Effective Time and (ii) the Exchange Ratio. Prior to the Effective Time, the Board of Directors of the Company or the appropriate committee thereof shall adopt resolutions providing for the treatment of the Company RSU Awards, the Company PSU Awards and the Company Stock Options (collectively, the “Company Equity Awards”) as contemplated by this Section 1.5(b).

(a)No Fractional Shares. Notwithstanding anything else in this Agreement, no certificates or scrip representing a fractional share of Parent Common Stock will be issued pursuant to this Section 1.5 in connection with payment of the Merger Consideration, and to the extent a fractional share of Parent Common Stock is issuable as part of the Merger Consideration after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such Person pursuant to this Section 1.5, such fraction shall be rounded up to one whole share of Parent Common Stock.

(b)Certain Adjustments. If, during the period commencing on the date of this Agreement and ending at the Effective Time, the outstanding shares of Company Common Stock or Parent Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, or if a stock dividend is declared by the Company or Parent, as applicable during such period, or a record date with respect to any such event shall occur during such period, then the Exchange Ratio shall be adjusted to the extent appropriate. Nothing in this Section 1.5(d) shall be construed to permit any Party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.

1.1Closing of the Company’s Transfer Books. At the Effective Time: (a) all shares of Company Common Stock outstanding immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and all holders of certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time (each such certificate, a “Company Stock Certificate”) or uncertificated shares of Company Common Stock represented by book entry (each such share, an “Uncertificated Share”) shall cease to have any rights as stockholders of the Company; and (b) the stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately prior to the Effective Time. No further transfer of any such shares of Company


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Common Stock shall be made on such stock transfer books after the Effective Time. If, after the Effective Time, a valid Company Stock Certificate or Uncertificated Share is presented to the Exchange Agent or to the Surviving Corporation or Parent, such Company Stock Certificate or Uncertificated Share shall be canceled and shall be exchanged as provided in Section 1.7.

1.2Exchange of Certificates.

(c)Exchange Agent; Exchange Fund. Prior to the Closing, Parent shall enter into an exchange agreement (which shall be reasonably acceptable to the Company) with the transfer agent of Parent (or, at Parent’s election, such other nationally recognized financial institution or trust company designated by Parent and reasonably acceptable to the Company) (the “Exchange Agent”) for the payment of the Merger Consideration as provided in Section 1.5. Prior to or substantially concurrently with the Effective time, Parent shall deposit or cause to be deposited with the Exchange Agent, for exchange in accordance with this Section 1 through the Exchange Agent, book-entry shares representing the full number of whole shares of Parent Common Stock issuable pursuant to Section 1.5 in exchange for outstanding shares of Company Common Stock, and Parent shall, after the Effective Time on the appropriate payment date, if applicable, provide or cause to be provided to the Exchange Agent any dividends or other distributions payable on such shares of Company Common Stock pursuant to Section 1.7(c) (such shares of Parent Common Stock provided to the Exchange Agent, together with any such dividends or other distributions with respect thereto, the “Exchange Fund”).

(d)Exchange Procedures.

(i)Company Stock Certificates. As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent to deliver to each holder of record of a Company Stock Certificate (i) a notice advising such holder of the effectiveness of the Merger, (ii) a letter of transmittal (which shall specify that delivery of Company Stock Certificates shall be effected, and risk of loss and title to the Company Stock Certificates shall pass only upon proper delivery of the Company Stock Certificates (or affidavits of loss in lieu thereof) to the Exchange Agent, and which shall be in the form and have such other provisions as are reasonably acceptable to Parent) and (iii) instructions (which instructions shall be in the form and have such other provisions as are reasonably acceptable to Parent) for use in effecting the surrender of the Company Stock Certificates in exchange for (A) the number of shares of Parent Common Stock (which shall be in book-entry form) representing, in the aggregate, the whole number of shares that such holder has the right to receive in respect of such Company Stock Certificates pursuant to Section 1.5 and (B) any dividends or other distributions payable pursuant to Section 1.7(c).

(ii)Non-DTC Uncertificated Shares. As soon as reasonably practicable after the Effective Time, Parent shall cause the Exchange Agent to deliver to each holder of Uncertificated Shares not held through DTC (i) a notice advising such holders of the effectiveness of the Merger, (ii) a statement reflecting the number of shares of Parent Common Stock (which shall be in book-entry form) representing, in the aggregate, the whole number of shares that such holder has the right to receive in respect of such Uncertificated Shares pursuant to Section 1.5 and (B) to the extent any dividends or other distributions are payable pursuant to Section 1.7(c), a check for such amount.

(iii)DTC Uncertificated Shares. With respect to Uncertificated Shares held through DTC, Parent and the Company shall cooperate to establish procedures with the Exchange Agent and DTC to ensure that the Exchange Agent will transmit to DTC or its nominees as soon as reasonably practicable on or after the Closing Date, upon surrender of Uncertificated Shares held of record by DTC or its nominees in accordance with DTC’s


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customary surrender procedures, the Merger Consideration and, to the extent any dividends or other distributions are payable pursuant to Section 1.7(c), cash for such amount.

(iv)Certain Transfers of Ownership. With respect to Company Stock Certificates, if payment of the Merger Consideration and any dividends or other distributions pursuant to Section 1.7(c) is to be made to a Person other than the record holder of such Company Stock Certificate, it shall be a condition of payment that shares so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of such shares surrendered or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. With respect to Uncertificated Shares, payment of the Merger Consideration and any dividends or other distributions pursuant to Section 1.7(c) shall only be made to the Person in whose name such Uncertificated Shares are registered in the stock transfer books of the Company as of the Effective Time. Until surrendered as contemplated by this Section 1.7(b)(iv), each Company Stock Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration payable in respect of such shares of Company Common Stock and any dividends or other distributions to which such holder is entitled pursuant to Section 1.7(c).

(e)Distributions with Respect to Unexchanged Shares. Subject to Applicable Law, there shall be paid to the holders of the Parent Common Stock issued in exchange for Company Stock Certificates or Uncertificated Shares pursuant to Section 1.7(b), without interest, (i) at the time of delivery of such Parent Common Stock by the Exchange Agent pursuant to Section 1.7(b), the amount of dividends or other distributions, if any, with a record date after the Effective Time theretofore paid with respect to such shares of Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions, if any, with a record date after the Effective Time, but prior to such delivery of such Parent Common Stock by the Exchange Agent pursuant to Section 1.7(b), and a payment date subsequent to such delivery of such Parent Common Stock by the Exchange Agent pursuant to Section 1.7(b), payable with respect to such shares of Parent Common Stock.

(f)Lost Certificates. If any Company Stock Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate the Merger Consideration to which the holder thereof is entitled pursuant to this Section 1.

(g)Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of the Company Stock Certificates or Uncertificated Shares for one (1) year after the Effective Time shall be delivered to Parent or its designee upon demand, and any such holders prior to the Merger who have not theretofore complied with this Section 1 shall thereafter look only to Parent as general creditor thereof for payment of their claims for Merger Consideration and any dividends or distributions with respect to Parent Common Stock as contemplated by Section 1.7(c).

(h)No Liability. None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any person in respect of any shares of Parent Common Stock (or dividends or distributions with respect thereto) or cash held in the Exchange Fund delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar Law. If any Company Stock Certificate shall not have been surrendered or Uncertificated Share not


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paid, in each case, in accordance with Section 1.7(b), immediately prior to the date on which any Merger Consideration in respect of such Company Stock Certificate or Uncertificated Share would otherwise escheat to or become the property of any Governmental Authority, any such Merger Consideration in respect of such Company Stock Certificate or Uncertificated Share shall, to the extent permitted by Applicable Law, become the property of Parent free and clear of all claims or interest of any person previously entitled thereto.

(i)Withholding Rights. Each of Parent, Merger Sub, the Surviving Corporation and the Exchange Agent shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement to any person such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any provision of Applicable Law. Any amounts so withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

1.3Further Action. If, at any time after the Effective Time, any further action is determined by Parent or the Surviving Corporation to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession of and to all rights and property of Merger Sub and the Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized (in the name of Merger Sub, in the name of the Company and otherwise) to take such action.

1.4No Dissenters’ Rights. In accordance with Section 262 of the DGCL, no appraisal rights shall be available with respect to the Merger or other Contemplated Transactions.

1.5Tax Treatment. The Company, Parent, the Surviving Corporation and Merger Sub intend that the Merger be a reorganization described in section 368(a) of the Code occurring pursuant to a plan of reorganization within the meaning of Treasury Regulation section 1.368-1 and each of the Company, Parent, the Surviving Corporation and Merger Sub shall not take and position on any Tax Return inconsistent with this characterization.

1.6Closing Statements.

(j)No later than the close of business of the fifth (5th) Business Day preceding the day on which Closing shall occur pursuant to Section 1.3, the Company shall provide to Parent a written statement, signed by an executive officer of the Company (the “Company Closing Statement”), setting forth the Company’s good faith estimate, together with related supporting calculations and work papers and back-up materials relating thereto, of the Company Cash Amount. The Company shall provide Parent and its Representatives with reasonable access during normal business hours to the relevant books, records and finance personnel of the Company to enable Parent and its Representatives to review and analyze the Company Closing Statement and the components thereof. If requested by Parent, the Parties shall meet and confer regarding the Company Closing Statement and the components thereof no later than the third (3rd) Business Day prior to the day on which Closing shall occur pursuant to Section 1.3, and shall make such changes thereto as the Parties may mutually and in good faith agree, and the Company Cash Amount as so mutually agreed in writing shall be final and binding on the Parties for all purposes of this Agreement. If there is a dispute between the Parties regarding the Company Closing Statement or the Company Cash Amount that is not resolved as of such date of meeting, and the resolution of such dispute is required to determine whether the Company Cash Amount is less than the Company Minimum Cash Amount, then any such disputed items shall be referred to Deloitte Touche Tohmatsu Limited, or in the event that such firm declines to serve in such capacity, an independent auditor of recognized national standing jointly selected by Parent and the Company (the “Accounting Firm”), each Party acting reasonably and as quickly as possible, time being of the essence. The Parties shall promptly


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deliver to the Accounting Firm the work papers and back-up materials used in preparing the relevant Company Closing Statement and any remaining disputes with respect thereto, and the Parties shall use reasonable best efforts to cause the Accounting Firm to make its determination as soon as possible and within seven (7) calendar days of accepting its selection at the latest. The Parties shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a representative of the other Party. The determination of the Accounting Firm shall be limited to the items in dispute submitted to the Accounting Firm and limited to applying the definition of Company Cash Amount as set forth herein. Any determination of the Company Cash Amount made by the Accounting Firm shall be made in writing, delivered to each of the Parties, and shall be final and binding on the Parties hereto and shall be deemed to have been finally determined for purposes of this Agreement and to represent the Company Cash Amount and Company Closing Statement, as applicable, for all purposes of this Agreement.

(k)No later than the close of business of the fifth (5th) Business Day preceding the day on which Closing shall occur pursuant to Section 1.3, Parent shall provide to the Company a written statement, signed by an executive officer of Parent (the “Parent Closing Statement”), setting forth Parent’s good faith estimate, together with related supporting calculations and work papers and back-up materials relating thereto, of the Parent Cash Amount. Parent shall provide the Company and its Representatives with reasonable access during normal business hours to the relevant books, records and finance personnel of Parent to enable the Company and its Representatives to review and analyze the Parent Closing Statement and the components thereof. If requested by the Company, the Parties shall meet and confer regarding the Parent Closing Statement and the components thereof no later than the third (3rd) Business Day prior to the day on which Closing shall occur pursuant to Section 1.3, and shall make such changes thereto as the Parties may mutually and in good faith agree, and the Parent Cash Amount as so mutually agreed in writing shall be final and binding on the Parties for all purposes of this Agreement. If there is a dispute between the Parties regarding the Parent Closing Statement or the Parent Cash Amount that is not resolved as of such date of meeting, and the resolution of such dispute is required to determine whether the Parent Cash Amount is less than the Parent Minimum Cash Amount, then any such disputed items shall be referred to the Accounting Firm, each Party acting reasonably and as quickly as possible, time being of the essence. The Parties shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the relevant Parent Closing Statement and any remaining disputes with respect thereto, and the Parties shall use reasonable best efforts to cause the Accounting Firm to make its determination as soon as possible and within seven (7) calendar days of accepting its selection at the latest. The Parties shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of a representative of the other Party. The determination of the Accounting Firm shall be limited to the items in dispute submitted to the Accounting Firm and limited to applying the definition of Parent Cash Amount as set forth herein. Any determination of the Parent Cash Amount made by the Accounting Firm shall be made in writing, delivered to each of the Parties, and shall be final and binding on the Parties hereto and shall be deemed to have been finally determined for purposes of this Agreement and to represent the Parent Cash Amount and Parent Closing Statement, as applicable, for all purposes of this Agreement.

(l)The parties shall delay the Closing until the final and binding determination of the Company Cash Amount and the Parent Cash Amount in accordance with the provisions of this Section 1.11 and Closing shall occur promptly thereafter in accordance with Section 1.3. The fees and expenses of the Accounting Firm shall be allocated between the Parties in the same proportion that the disputed amount of the Company Cash Amount or Parent Cash Amount, as applicable, that was unsuccessfully disputed by such Party (as finally


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determined by the Accounting Firm) bears to the total disputed amount of the Company Cash Amount or Parent Cash Amount, as applicable. If the dispute resolution procedures involving the Accounting Firm pursuant to this Section 1.11 apply, upon resolution of the matter in accordance with this Section 1.11, the Parties shall not be required to determine the Company Cash Amount or Parent Cash Amount again even though the Closing Date may occur later than the originally contemplated Closing Date.

Section 2.Representations and Warranties of the Company

The Company represents and warrants to Parent and Merger Sub as follows, it being understood that each representation and warranty contained in this Section 2 is subject to: (a) the exceptions and disclosures set forth in the Company Disclosure Schedule (subject to Section 9.6); and (b) disclosure in any Company SEC Report filed with the SEC and publicly available on EDGAR at least one (1) Business Day before the date of this Agreement but excluding any disclosure contained under the heading “Risk Factors,” any disclosure of risks included in any “forward-looking statements” disclaimer and any other information, statement or other disclosure that is similarly predictive, cautionary or forward-looking in nature:

1.6Due Organization; Subsidiaries.

(a)The Company is duly organized, validly existing and in good standing under the laws of the State of Delaware and each of the other Acquired Companies is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the laws of the jurisdiction of its organization. Except as would not reasonably be expected to have or result in a Company Material Adverse Effect, each Acquired Company has all necessary corporate or other power, as the case may be, and authority: (i) to conduct its business in the manner in which its business is currently being conducted; (ii) to own and use its assets in the manner in which its assets are currently owned and used; and (iii) to perform its obligations under all Contracts by which it is bound. Each of the Acquired Companies is qualified, registered or licensed to do business as a foreign entity, and is in good standing (with respect to jurisdictions that recognize such concept), under the laws of all jurisdictions where the nature of its business or the ownership or use of its assets requires such qualification, registration or licensure, except where that failure to be so qualified, registered or licensed would not reasonably be expected to have or result in a Company Material Adverse Effect.

(b)Part 2.1(b)(i) of the Company Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of the name and jurisdiction of organization of each Subsidiary of the Company. Except as set forth in Part 2.1(b)(ii) of the Company Disclosure Schedule, (i) neither the Company nor any of the other Acquired Companies owns any capital stock of, or any equity interest of any nature in, any other Entity, other than another Acquired Company, (ii) none of the Acquired Companies has at any time been a general partner of any general or limited partnership and (iii) none of the Acquired Companies has agreed or is obligated to make, or is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity.

1.7Organizational Documents. The Company has Made Available to Parent accurate and complete copies of the certificate of incorporation, bylaws, certificate of formation or limited partnership, partnership agreement and other charter and organizational or governing documents of the Company and each other Acquired Company, including all amendments and supplements thereto as of the date of this Agreement. The Company is not in violation of any of the provisions of its certificate of incorporation or bylaws including all amendments thereto. No Acquired Company is in violation of any of the provisions of its certificate of incorporation, bylaws, certificate of formation or limited partnership, partnership agreement and other charter and organizational or governing documents including all amendments thereto, of such Entity,


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except where such violation would not reasonably be expected to have a result in a Company Material Adverse Effect.

1.8Capitalization.

(a)The authorized capital stock of the Company consists of: (i) 500,000,000 shares of Company Common Stock, of which 114,707,700 shares have been issued and are outstanding as of the close of business on the Business Day immediately preceding the date of this Agreement (the “Measurement Time”); and (ii) 10,000,000 shares of Company Preferred Stock, of which no shares have been issued or are outstanding. As of the Measurement Time, no shares of Company Common Stock are held by the Company as treasury stock. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. Except for the shares of Company Common Stock held by the Company as treasury stock, there are no shares of Company Common Stock held by any of the Acquired Companies. There is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. None of the Acquired Companies is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other securities.

(b)As of the Measurement Time: (i) 6,121,177 shares of Company Common Stock are subject to issuance pursuant to Company Stock Options granted and outstanding under the Company Equity Plans; (ii) 8,080,745 shares of Company Common Stock are subject to issuance and/or delivery pursuant to Company RSU Awards granted and outstanding under the Company Equity Plans (excluding the Company Earnout Acquiror RSUs); (iii) 5,100,000 shares of Company Common Stock are subject to issuance and/or delivery pursuant to Company PSU Awards granted and outstanding under the Company Equity Plans (reflecting shares of Company Common Stock that vest based on performance-based vesting requirements assuming deemed achievement of maximum performance); (iv) no Company Equity Awards are outstanding other than those granted under the Company Equity Plans and referenced in the preceding clauses (i) through (iii); (v) 7,190,057 shares of Company Common Stock are reserved for future issuance pursuant to Company Equity Awards not yet granted under the Company Equity Plans; (vi) 10,185,774 shares of Company Common Stock are subject to issuance pursuant to and upon the exercise of all issued and outstanding Company Public Warrants; (vii) 6,074,310 shares of Company Common Stock are subject to issuance pursuant to and upon exercise of all issued and outstanding Company Private Warrants; (viii) 6,945,732 shares of Company Common Stock are subject to issuance pursuant to Company Earnout Shares upon the satisfaction of certain performance thresholds set forth in the SPAC Merger Agreement; and (ix) 150,504 shares of Company Common Stock are subject to issuance pursuant to Company Earnout Acquiror RSUs upon the satisfaction of certain performance thresholds set forth in the SPAC Merger Agreement.

(c)Part 2.3(c) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Equity Award outstanding as of the Measurement Time: (A) the Company Equity Plan (if any) pursuant to which such Company Equity Award was granted; (B) the name of the holder of such Company Equity Award; (C) the number of shares of Company Common Stock subject to such Company Equity Award (including, for Company Equity Awards subject to performance-based vesting requirements, both the target and the maximum number of shares of Company Common Stock); (D) the exercise price (if any) of such Company Equity Award; (E) the date on which such Company Equity Award was granted; (F) the applicable vesting schedule, and the extent to which such Company Equity Award is vested and/or exercisable; (G) the date on which such Company Equity Award expires; (H) if such Company Equity Award is a Company Stock Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (I) if


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such Company Equity Award is a Company RSU Award or Company PSU Award, whether such Company RSU Award or Company PSU Award is subject to Section 409A of the Code and the regulations and guidance thereunder (“Section 409A”); and (J) if such Company Equity Award is a Company RSU Award or Company PSU Award, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule. The Company has Made Available to Parent accurate and complete copies of all equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which any stock options, restricted stock units or performance stock units (including all outstanding Company Equity Awards, whether payable in equity, cash or otherwise) are currently outstanding as of the date of this Agreement, and the forms of all stock option, restricted stock unit and performance stock unit award agreements evidencing such outstanding stock options, restricted stock units or performance stock units (whether payable in equity, cash or otherwise) as of the date of this Agreement. The exercise price of each Company Stock Option was, on the date of grant of such Company Stock Option no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Stock Option. All grants of Company Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise).

(d)Except for shares of Company Common Stock issued following the Measurement Time pursuant to the exercise or vesting of Company Equity Awards outstanding as of the Measurement Time, as of the date of this Agreement there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the Acquired Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Acquired Companies; or (iii) Contract under which any of the Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.

(e)All outstanding shares of Company Common Stock, options, warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and other securities of the Acquired Companies have been issued and granted in compliance with: (i) all applicable securities laws and other Applicable Laws; and (ii) all requirements set forth in applicable Contracts.

(f)All of the outstanding shares of capital stock of each of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal Liability attaching to the ownership thereof, and are owned beneficially and of record by the Company or another Acquired Company, free and clear of any Encumbrances, except for Permitted Encumbrances.

1.9Authority; Binding Nature of Agreement. The Company has the necessary corporate power and authority to enter into and to perform its obligations under this Agreement and to consummate the Contemplated Transactions, subject only to the adoption of this Agreement by the Required Company Stockholder Vote. The board of directors of the Company (at a meeting duly called and held) has, by unanimous vote of all directors of the Company: (a) determined that the Merger is advisable and fair to, and in the best interests of, the Company and its stockholders; (b) authorized and approved the execution, delivery and performance of this Agreement by the Company and approved the Merger; (c) recommended the adoption of this Agreement by the holders of Company Common Stock and directed that this Agreement be submitted for adoption by the Company’s stockholders at the Company Stockholders’ Meeting; and (d) to the extent necessary, adopted a resolution having the effect of causing the Company not to be subject to any state takeover law or similar Applicable Law that


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otherwise might apply to the Merger or any of the other Contemplated Transactions. This Agreement has been duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

1.10Non-Contravention; Consents. Neither the execution, delivery or performance of this Agreement nor the consummation of the Merger or any of the other Contemplated Transactions, will directly or indirectly (with or without notice or lapse of time):

(c)contravene, conflict with or result in a violation of (i) any of the provisions of the certificate of incorporation, bylaws, certificate of formation or limited partnership, partnership agreement or other charter or organizational or governing documents of any of the Acquired Companies or (ii) any resolution adopted by the stockholders or equityholders, the board of directors (or similar governing body) or any committee of the board of directors (or similar governing body) of any of the Acquired Companies;

(d)subject to any filings, notices or Consents referenced in the following sentence, contravene, conflict with or result in a violation of, or give any Governmental Authority or other Person the right to challenge the Merger or any of the other Contemplated Transactions or to exercise any remedy or obtain any relief under, any Applicable Law or any Order to which any of the Acquired Companies, or any of the assets owned or used by any of the Acquired Companies, is subject;

(e)subject to any filings, notices or Consents referenced in the following sentence, contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by any of the Acquired Companies or that otherwise relates to the business of any of the Acquired Companies or to any of the assets owned or used by any of the Acquired Companies;

(f)subject to any notices or Consents set forth in Part 2.5 of the Company Disclosure Schedule, contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Material Contract, or give any Person the right to: (i) declare a default or exercise any remedy under any Material Contract; (ii) a penalty under any Material Contract; (iii) accelerate the maturity or performance of any Material Contract; or (iv) cancel, terminate or modify any right, benefit, obligation or other term of any Material Contract; or

(g)result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by any of the Acquired Companies or Permitted Encumbrances;

other than in the case of clauses (b) through (e) any such filings, notices, Consents, contraventions, conflicts, violations, breaches or defaults that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and would not reasonably be expected to have the effect of preventing, delaying, making illegal or otherwise interfering with, the Merger or any of the Contemplated Transactions.

Except as may be required by the Exchange Act, the DGCL, the HSR Act and any other Antitrust Law filing, and except as set forth in Part 2.5 of the Company Disclosure Schedule, none of the Acquired Companies was, is or will be required to make any filing with or give any notice to, or to obtain any Consent from, in each case prior to the Closing, any Governmental Authority in connection with: (i) the execution, delivery or performance by any of the Acquired Companies of this Agreement; or (ii) the consummation of the Merger or any of the other Contemplated


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Transactions by the Company, except any filing, notice or Consent that would not reasonably be expected to be material and adverse to the Acquired Companies and would not reasonably be expected to have the effect of preventing, delaying or making illegal the Merger or any of the Contemplated Transactions.

1.11SEC Filings; Financial Statements; Internal Controls.

(a)The Company has Made Available to Parent accurate and complete copies of all registration statements, proxy statements, Certifications and other reports, schedules, forms, statements and other documents filed or furnished by the Company with the SEC and all amendments thereto, in each case between January 1, 2020 and the date of this Agreement (the “Company SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by the Company with the SEC have been so filed on a timely basis. None of the Company’s Subsidiaries is required to file any documents with the SEC. As of the time it was filed with or furnished to the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the Company SEC Reports complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act (as the case may be); and (ii) none of the Company SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to each annual report on Form 10-K and each quarterly report on Form 10-Q included in the Company SEC Reports, the principal executive officer and principal financial officer of the Company have made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act (each such required certification, a “Certification”), and the statements contained in such certifications were accurate and complete as of its date. For purposes of this Agreement, (A) “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act and (B) the term “file” and variations thereof shall be broadly construed to include any manner in which any document or information is furnished, supplied or otherwise made available to the SEC. As of the date of this Agreement, there are no unresolved comments issued by the staff of the SEC with respect to any of the Company SEC Reports. As of the date of this Agreement, to the Knowledge of the Company, none of the Company SEC Reports is the subject of any ongoing review by the SEC.

(b)The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company contained or incorporated by reference in the Company SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments that will not, individually or in the aggregate, be material in amount); and (iii) fairly present the consolidated financial position of the Company and its consolidated subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the Company and its consolidated subsidiaries for the periods covered thereby. No financial statements of any Person other than the Acquired Companies are required by GAAP to be included in the consolidated financial statements of the Company.

(c)The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset


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accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accounting for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(d)The Company maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information concerning the Acquired Companies is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents and such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors and in a Company SEC Report (i) any significant deficiency or material weakness in the design or operation of its internal control over financial reporting that is reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or any other employee or service provider who has (or has had) a significant role in the Company’s internal control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Global Market, and, since January 1, 2020, has not received any notice from The Nasdaq Global Market asserting any material non-compliance with such rules and regulations.

(e)The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act. No Acquired Company has outstanding, or has arranged any outstanding, “extension of credit” to any director or executive officer within the meaning of Section 402 of the Sarbanes-Oxley Act.

(f)Since January 1, 2020, there have been no changes in any of the Company’s accounting policies or in the methods of making accounting estimates or changes in estimates that, individually or in the aggregate, are material and adverse to the Company’s financial statements (including, any related notes thereto) contained in the Company SEC Reports, except as described in the Company SEC Reports.

(g)Since January 1, 2020, all transactions, agreements, arrangements or understandings between any Acquired Company and any other Person that were required to be disclosed pursuant to Item 404 of Regulation S-K were disclosed in Company SEC Reports, as applicable.

1.12Absence of Changes. Since January 1, 2022 through the date of this Agreement, there has not been any Material Adverse Effect, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Material Adverse Effect.

1.13Legal Proceedings; Orders.

(h)As of the date of this Agreement, there is no pending Legal Proceeding and, to the Knowledge of the Company, no Person has threatened to commence any Legal Proceeding: (i) that involves any of the Acquired Companies or any of the assets owned or used by any of the Acquired Companies, except for Legal Proceedings that, individually or in the aggregate, are not and would not reasonably be expected to be a Company Material Adverse Effect; or (ii) challenges, or that may have the effect of preventing, delaying, making illegal or


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otherwise interfering with, the Merger or any of the Contemplated Transactions. To the Knowledge of the Company, no event has occurred, and no claim, dispute or other condition or circumstance exists, that reasonably would be expected to give rise to or serve as a basis for the commencement of any such Legal Proceeding.

(i)There is no Order to which any of the Acquired Companies, or any of the assets owned or used by any of the Acquired Companies, is subject, except for Orders that, individually or in the aggregate, are not and would not reasonably be expected to be a Company Material Adverse Effect. No officer of any of the Acquired Companies is subject to any Order that prohibits such officer from engaging in or continuing any conduct, activity or practice relating to the business of any of the Acquired Companies that would reasonably be expected to be a Company Material Adverse Effect.

1.14Title to Assets. Except as would not reasonably be expected to have a Company Material Adverse Effect, the Acquired Companies own, and have good and valid title to, all assets owned or purported to be owned by them, including: (a) all assets reflected on the Company Balance Sheet (except for inventory sold or otherwise disposed of in the ordinary course of business since the date of the Company Balance Sheet); and (b) all other assets reflected in the books and records of the Acquired Companies as being owned by the Acquired Companies. Except as would reasonably be expected to have a Company Material Adverse Effect, all of such assets are owned by the Acquired Companies free and clear of any Encumbrances, except for Permitted Encumbrances.

1.15Real Property; Equipment; Leasehold.

(a)Part 2.10(a) of the Company Disclosure Schedule sets forth an accurate and complete description of real property owned by the Acquired Companies (the “Owned Real Property”). Except as set forth in Part 2.10(a) of the Company Disclosure Schedule, none of the Acquired Companies owns any real property or any interest in real property. Except as would not reasonably be expected to have a Company Material Adverse Effect, the Acquired Companies are the sole owners of the Owned Real Property and have good, valid and marketable fee simple title to the Owned Real Property, and the Owned Real Property is free and clear of any Encumbrances, except for Permitted Encumbrances.

(b)Part 2.10(b) of the Company Disclosure Schedule sets forth an accurate and complete list of each real property lease, sublease, license or occupancy agreement pursuant to which any of the Acquired Companies leases, subleases, licenses or occupies real property from any other Person (the “Leases”), and, except as would not reasonably be expected to be a Company Material Adverse Effect: (i) the Acquired Companies are the sole holders of good, valid and subsisting leasehold interests in and to all of the Leased Real Property, and the Acquired Companies’ interests in the Leased Real Property are free and clear of any Encumbrances, except for Permitted Encumbrances; (ii) all of the Leases are (A) valid, binding on and enforceable against the applicable Acquired Company and, to the Knowledge of the Company, each of the parties thereto, subject to the Enforceability Exceptions, and (B) are in full force and effect, have not been modified, amended or supplemented, in writing or otherwise, and all material rents, additional rents and other amounts due to date pursuant to each Lease have been paid; (iii) either the applicable Acquired Company, nor, to the Knowledge of the Company, any other party to any Lease, has breached such Lease in any material respect, nor has any event or omission occurred which, with the giving of notice or the lapse of time, or both, would constitute a material breach or default under any Lease; and (iv) the Company has Made Available to Parent accurate and complete copies of all Leases.

(c)Except as would not reasonably be expected to be a Company Material Adverse Effect, no Acquired Company has made any alterations, additions or improvements to


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the Leased Real Property that are required to be removed at the termination of the applicable lease term, and the present use and operation of the Owned Real Property and the Leased Real Property is authorized by, and is in compliance with all Applicable Laws. There is no Legal Proceeding pending, or, to the Knowledge of the Company threatened, that challenges or adversely affects, or would challenge or adversely affect, the continuation of the present use or operation of any Owned Real Property or Leased Real Property, except for Legal Proceedings that, individually or in the aggregate, are not and would not reasonably be expected to be Company Material Adverse Effect.

(d)Except as would not reasonably be expected to be a Company Material Adverse Effect (i) there are no leases, subleases, licenses, occupancy agreements or other contractual obligations that grant the right of use or occupancy of any of the Owned Real Property or Leased Real Property to any Person other than the Acquired Companies (each a “Tenant Lease”), (ii) there is no Person in possession of any of the Owned Real Property or Leased Real Property other than the Acquired Companies, and (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any of the Owned Real Property or any portion thereof or interest therein.

1.16Intellectual Property.

(j)Part 2.11(a) of the Company Disclosure Schedule accurately identifies: each item of material Registered IP in which any Acquired Company has (or purports to have) an ownership interest, including the jurisdiction in which such item of material Registered IP has been registered or filed and the applicable application, registration or serial number and date and the record owner, in each case as of the date of this Agreement and except as would not reasonably be expected to be a Company Material Adverse Effect.

(k)The Acquired Companies own all right, title and interest in and to the material Company IP (other than Intellectual Property and Intellectual Property Rights licensed to the Acquired Companies under Company Inbound Licenses), free and clear of any Encumbrances, except for Permitted Encumbrances, except as would not reasonably be expected to be a Company Material Adverse Effect. Without limiting the generality of the foregoing and except as would not reasonably be expected to be a Company Material Adverse Effect: (i) all documents and instruments necessary to perfect the rights of the Acquired Companies in the Company IP that is material Registered IP have been validly executed, delivered and filed with the appropriate Governmental Authority; (ii) each Person who is or was involved in the creation, contribution or development of any material Company IP in the course of that Person’s work with or for any Acquired Company has assigned to an Acquired Company all such Intellectual Property and Intellectual Property Rights and is bound by confidentiality provisions protecting such material Intellectual Property Rights; (iii) each Acquired Company has taken reasonable steps to maintain the confidentiality of its trade secrets and other confidential information, and to otherwise protect, create, enforce, maintain and preserve its material Intellectual Property Rights, and, to the Knowledge of the Company, there has been no material violation, infringement or unauthorized access or disclosure of the foregoing; and (iv) to the Knowledge of the Company, the Acquired Companies own or otherwise have sufficient rights in, and after the Closing the Surviving Corporation will continue to own and otherwise have sufficient rights in, all material Intellectual Property Rights necessary to conduct the business of the Acquired Companies as currently conducted and currently planned by the Acquired Companies to be conducted.

(l)All Company IP that is material Registered IP is subsisting, and, to the Knowledge of the Company, valid and enforceable. Without limiting the generality of the foregoing, no Legal Proceeding is or has been pending or, to the Knowledge of the Company, threatened, in which the ownership, scope, validity or enforceability of any material Company IP is being or has been contested or challenged.


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(m)To the Knowledge of the Company, (i) no Acquired Company is infringing, misappropriating, or otherwise violating any material Intellectual Property or Intellectual Property Right of any other Person, (ii) none of the Company Products or the conduct of the business of any Acquired Company infringes, violates or otherwise violates any material Intellectual Property Right of any other Person, and (iii) no Person is infringing, misappropriating, or otherwise violating any material Company IP. Without limiting the generality of the foregoing: (A) to the Knowledge of the Company, no infringement, misappropriation or similar claim or Legal Proceeding is pending or, threatened against any Acquired Company; and (B) since January 1, 2019, no Acquired Company has received any written notice or other communication relating to any actual, alleged or suspected infringement, misappropriation, violation or unlawful use by any Company Product, or by any Acquired Company, of any material Intellectual Property or material Intellectual Property Right of another Person.

(n)No Company Software contains, is derived from, is distributed or made available with, or is being or was developed using Open Source Software in a manner such that the terms under which such Open Source Software is licensed impose a requirement or condition that an Acquired Company grant a license under or to, or refrain from asserting or enforcing a Company IP right intended by the Company to retained as confidential, or that would require a part of any Company Software intended to be retained as confidential be: (i) disclosed, distributed or made available in source code form; (ii) licensed for the purpose of making modifications or derivative works; or (iii) redistributable at no or minimal charge, in each case, except as would not reasonably be expected to be a Company Material Adverse Effect.

(o)Except as would not reasonably be expected to be a Company Material Adverse Effect, the Acquired Companies’ receipt, collection, monitoring, maintenance, creation, transmission, transfer, use, processing, analysis, disclosure, storage, disposal and security of Protected Information has complied, and complies with: (i) each Company Contract in all material respects; (ii) applicable Information Privacy and Security Laws; and (iii) publicly published privacy policies adopted by the Acquired Companies relating to Protected Information in all material respects. Except as would not reasonably be expected to be a Company Material Adverse Effect, the Acquired Companies have adopted, and are and have been in compliance in all material respects with, reasonable policies and procedures designed to maintain the security of Protected Information gathered or accessed in the course of the operations of the Acquired Companies.

(p)Each Acquired Company protects in all material respects the confidentiality, integrity and security of its Protected Information and its IT Systems against any unauthorized use, access, interruption, modification or corruption, except as would not reasonably be expected to be a Company Material Adverse Effect. Each Acquired Company is taking, and has at all times taken, all reasonable measures to ensure that any Protected Information collected or handled by authorized third parties acting on behalf of such Acquired Company provides similar safeguards, in each case, in compliance in all material respects with applicable Information Privacy and Security Laws and consistent with general industry standards.

(q)Except as would not reasonably be expected to be a Company Material Adverse Effect, to the Knowledge of the Company, no material Company Technology contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry), disabling codes or other vulnerabilities, faults or any other code designed or intended to have, any of the following functions: disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, Protected Information, information processed by Company Technology, or a computer system or network or other device on which such code is stored or


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installed. To the Knowledge of the Company, there has been no material data security breach of any material IT System, or material unauthorized acquisition, access, use or disclosure of any Protected Information, owned, transmitted, used, stored, received or controlled by or on behalf of any of the Acquired Companies, or investigation, audit, complaint or litigation relating to any data security breach or violation of Information Privacy and Security Laws by any Acquired Company, except as would not reasonably be expected to be a Company Material Adverse Effect.

1.17Material Contracts.

(h)Part 2.12(a) of the Company Disclosure Schedule accurately identifies:

(i)any Company Contract relating to the employment of, or the performance of services by, any employee or consultant (other than standard offer letters in form and substance consistent with the forms Made Available to Parent);

(ii)any Company Contract, including any stock option plan, stock appreciation right plan, restricted stock or stock unit plan, stock purchase plan or other equity incentive plan, any of the benefits of which will be triggered or increased, or the vesting of any of the benefits of which will be accelerated, by the consummation of any of the Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions (either alone or in connection with a previous or subsequent termination of employment or service in combination therewith);

(iii)any Company Contract relating to the development, sale or disposition of any Owned Real Property;

(iv)any Company Contract that provides for indemnification of any director or officer of any Acquired Company;

(v)any Company Contract: (A) involving a material joint venture, strategic alliance, partnership or material teaming agreement, or involving the sharing of profits or revenue; or (B) for any capital expenditure in excess of $500,000 individually or $1,000,000 in the aggregate;

(vi)each material Company Inbound License, and each material Company Outbound License (other than a Company Contract with a Company Associate entered into in the ordinary course of business in which ownership of any Intellectual Property or Intellectual Property Rights created in the course of performing services are assigned to and owned exclusively by an Acquired Company);

(vii)any Company Contract entered into at any time since January 1, 2020: (A) relating to the disposition or acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $1,000,000 individually or $5,000,000 in the aggregate for all such Company Contracts; or (B) pursuant to which any Acquired Company will acquire any interest, or will make an investment, for consideration in excess of $5,000,000 in any other Person, other than another Acquired Company;

(viii)any Company Contract relating to the disposition or acquisition by any Acquired Company of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) in each case that contains continuing indemnification


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obligations of any Acquired Company that are material to the Acquired Companies taken as a whole, or any remaining “earn out” or other contingent payment or consideration of any Acquired Company that has not been satisfied in full prior to the date of this Agreement;

(ix)any Company Contract containing any standstill or similar provisions that limit or restrict: the ability of a Person to acquire any securities or assets of an Acquired Company;

(x)any Company Contract that materially limits or restricts the right or ability of any Acquired Company (or following the Closing would limit or restrict, or purport to limit or restrict, Parent or any Subsidiary of Parent (other than those Subsidiaries constituting Acquired Companies)):(A) to engage in any line of business or compete with, or provide any service to, any other Person or in any geographic area; (B) to acquire any material product or other asset or any service from any other Person, sell any product or other asset to or perform any service for any other Person, or transact business or deal in any other manner with any other Person; or (C) to develop, sell, supply, license, distribute, offer, support or service any product or any material Intellectual Property or other asset to or for any other Person other than in the ordinary course of business;

(xi)any Company Contract that: (A) grants material exclusive rights to market, sell or deliver any product or service of any Acquired Company; (B) contains any “most favored nation” or similar provision in favor of the counterparty; (C) contains a material right of first refusal, first offer or first negotiation or any similar right with respect to an asset owned by an Acquired Company; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of an Acquired Company’s requirements from any third party; or any Company Contract that, following the Closing would grant, contain or provide, or purport to grant, contain or provide, any of the foregoing rights in respect of Parent or any Subsidiary of Parent (other than those Subsidiaries constituting Acquired Companies);

(xii)any settlement, conciliation or similar Company Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on any Acquired Company or materially disrupts the business of any of the Acquired Companies as currently conducted; or (B) that would require any of the Acquired Companies to pay consideration valued at more than $500,000 in the aggregate following the date of this Agreement;

(xiii)any Company Contract evidencing Indebtedness of the Company in excess of $10,000,000;

(xiv)each Company Contract (excluding purchase orders given or received in the ordinary course of business) under which any of the Acquired Companies (A) paid in excess of $1,000,000 in fiscal year 2021 or (B) received in excess of $1,000,000 in fiscal year 2021;

(xv)each lease or rental Company Contract involving personal property (and not relating primarily to real property) pursuant to which any of the Acquired Companies is required to make rental payments in excess of $200,000 per month (excluding leases or rental Company Contracts for office equipment entered into in the ordinary course of business);

(xvi)any Company Contract evidencing reinsurance obligations of any of the Acquired Companies; and


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(xvii)any other Company Contract, if a breach of such Company Contract would reasonably be expected to have or result in a Material Adverse Effect.

(r)For purposes of this Agreement, Company Contracts of the type required to be set forth in Part 2.12(a) of the Company Disclosure Schedule and any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) shall be deemed to constitute a “Material Contract.” The Company has Made Available to Parent an accurate and complete copy of each Material Contract. Except as will not, and would not reasonably be expected to, result in a Company Material Adverse Effect each Material Contract is in full force and effect and is valid, binding and enforceable in accordance with its terms, subject to the Enforceability Exceptions. Except as will not, and would not reasonably be expected to, result in a Company Material Adverse Effect, none of the Acquired Companies, and, to the Knowledge of the Company, no other Person, has violated or breached, or committed any default under, any Material Contract. Except as will not, and would not reasonably be expected to, result in a Company Material Adverse Effect, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (i) result in a violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to receive or require a penalty under any Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Material Contract (or any material obligation thereunder); or (v) give any Person the right to cancel, terminate or modify any Material Contract. Since January 1, 2020, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, other communication regarding an allegation of, or breach of, or default under, any Material Contract, except for such breaches or defaults which would not reasonably be expected to result in a Company Material Adverse Effect.

1.18Liabilities. As of the date hereof, none of the Acquired Companies has any Liability that would be required to be recorded as a liability on a balance sheet prepared in accordance with GAAP (or required to be disclosed in the footnotes thereto under GAAP), except for: (i) Liabilities identified as such and in the amounts stated in the Company Balance Sheet; (ii) normal and recurring current Liabilities that have been incurred by the Acquired Companies since the date of the Company Balance Sheet in the ordinary course of business; (iii) Liabilities for performance of obligations of the Acquired Companies not yet due under Company Contracts; (iv) Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or otherwise in connection with the Contemplated Transactions, (v) Liabilities described and in the amounts stated in Part 2.13 of the Company Disclosure Schedule; and (v) other Liabilities that in the aggregate would not have, and would not reasonably be expected to have a Company Material Adverse Effect.

1.19Compliance with Applicable Laws.

(g)Each of the Acquired Companies is, and at all times since January 1, 2020 has been, in compliance with all Applicable Laws, except for such non-compliance which would not have, and would not reasonably be expected to have, a Company Material Adverse Effect. Since January 1, 2020, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, other communication from any Governmental Authority or other Person regarding any actual or possible material violation of, or failure to comply with, any Applicable Law, except, in each case, for any such violation of failure to comply that would not have, and would not reasonably be expected to have, a Company Material Adverse Effect.

(h)None of the Acquired Companies, and, to the Knowledge of the Company, no director, officer, other employee, consultant or agent or third party acting on behalf of any of the Acquired Companies, has directly or indirectly: (i) used any funds for any unlawful


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contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made, offered, or authorized any unlawful payment to any foreign or domestic government official or employee or to any foreign or domestic political party or campaign or violated any provision of any applicable anti-corruption or anti-bribery Applicable Law, including the Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act of 2010 and any other comparable law of a jurisdiction outside the United States; or (iii) made, offered or authorized any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment except, in each case of (i) through (iii), as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect. For purposes of this Section 2.14(b), an “unlawful payment” shall include any transfer of funds or any other thing of value, such as a gift, transportation or entertainment, which transfer is contrary to any Applicable Law, including any payment to a third party all or part of the proceeds of which is used for a corrupt payment. To the Knowledge of the Company, since January 1, 2020, none of the Acquired Companies under their control has been investigated, charged or prosecuted for any violation of any Applicable Law in respect of the matters contemplated by this Section 2.14(b). None of the Acquired Companies has disclosed to any Governmental Authority information that establishes or indicates that an Acquired Company violated or may have violated any Applicable Law in respect of the matters contemplated by this Section 2.14(b), or are aware of any circumstances that would reasonably be expected to give rise to such an investigation in the future, except, in each case, as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect.

1.20Governmental Authorizations. Except as would not have, and would not reasonably be expected to have a Company Material Adverse Effect, the Acquired Companies hold, and since January 1, 2020 have held, all Governmental Authorizations, and have made all filings required under Applicable Laws, necessary to enable the Acquired Companies to conduct their respective businesses in the manner in which such businesses are currently being conducted. Except as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect all such Governmental Authorizations are valid and in full force and effect or expired at a time when such Governmental Authorizations no longer were required. Except as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect, each Acquired Company is and has always been in compliance in with the terms and requirements of such Governmental Authorizations. Since January 1, 2020, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, other communication from any Governmental Authority regarding (i) any actual or possible violation of or failure to comply with any term or requirement of any Governmental Authorization or (ii) any actual or possible revocation, withdrawal, suspension, cancellation, termination or modification of any material Governmental Authorization, except, in each case of (i) and (ii) as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect.

1.21Tax Matters.

(s)Except as would not be material and adverse to the Acquired Companies taken as a whole: (i) each of the Tax Returns filed, or required to be filed, by or on behalf of any Acquired Company with any Governmental Authority with respect to any taxable period ending on or before the Closing Date (A) has been or will be filed on or before the applicable due date (taking into account any available extensions of such due date) and (B) has been, or will be when filed, accurate and complete and in compliance with all Applicable Laws; (ii) each of the Acquired Companies has timely paid all Taxes required to be paid by it; (iii) each of the Acquired Companies has withheld from each payment or deemed payment made to any Company Associate or to its past or present suppliers, creditors, stockholders or other third parties all Taxes and other deductions required to be withheld and has, within the time and in the manner required by Applicable Law, paid such withheld amounts to the proper Governmental


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Authority and complied with all related reporting and record retention requirements; and (iv) there are no Encumbrances for Taxes upon any of the assets of any of the Acquired Companies except for Permitted Encumbrances.

(a)There is no currently effective agreement extending or waiving the period of assessment or collection for any material Tax.

(b)No audit, claim or Legal Proceeding with respect to material Taxes or Tax Returns of any Acquired Company is pending or, to the Knowledge of the Company, has been threatened against or with respect to any Acquired Company in respect of any Tax, and no deficiency for any material amount of Tax has been asserted or assessed by a Governmental Authority against any Acquired Company that has not been completely settled, paid or withdrawn.

(c)No claim has ever been made by any Governmental Authority in a jurisdiction where an Acquired Company does not file a Tax Return that it is or may be subject to taxation by that jurisdiction.

(d)No Acquired Company has constituted either a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code in connection with a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

(e)In the five (5) years prior to the date hereof, no Acquired Company (i) has been a member of an “affiliated group” as defined in Section 1504(a) of the Code (or similar state, local or foreign filing group) other than a group consisting solely of the Company and one or more of its Subsidiaries, or (ii) has any material Liability for the Taxes of any Person other than an Acquired Company under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Applicable Law, including any arrangement for group or consortium relief or similar arrangement), or as a transferee or successor, or by Contract.

(f)None of the Acquired Companies is, or has ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract (except for an agreement solely between two or more Acquired Companies or entered into in the ordinary course of business and not primarily related to the allocation or sharing of Taxes).

(g)Each of the Acquired Companies has at all times complied in all material respects with Section 482 of the Code and any similar provision of state, local or foreign Tax Applicable Laws relating to transfer pricing (including the maintenance of contemporaneous documentation and the preparation of required transfer pricing reports).

(h)No Acquired Company has participated in, or is currently participating in, a “listed transaction” or a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) or a similar transaction under any corresponding or similar Applicable Law. Each of the Acquired Companies has disclosed on its U.S. federal income Tax Returns all positions taken therein that would give rise to a “substantial understatement” within the meaning of Section 6662 of the Code.

(i)None of the Acquired Companies will be required to include any material items of income in, or exclude any material items of deduction from, taxable income for a taxable period ending after the Closing as a result of: (i) any change in accounting method pursuant to Section 481 of the Code (or any comparable provision under state, local or foreign Tax Applicable Laws) as a result of transactions or events occurring, or accounting methods


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employed, prior to the Closing; (ii) deferred intercompany gain described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Tax Applicable Laws) arising from any transaction that occurred prior to the Closing; (iii) any installment sale or open transaction that occurred prior to the Closing; (iv) any prepaid amount received prior to the Closing; or (v) any election under Section 108(i) or Section 965(h) of the Code made prior to the Closing.

(j)No Acquired Company has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

1.7Employee and Labor Matters; Benefit Plans.

(k)None of the Acquired Companies is or has been a party to, subject to, or under any obligation to bargain for, any Collective Bargaining Agreement, and there are no labor organizations representing, purporting to represent or, to the Knowledge of the Company, seeking to represent any employee or Contract Worker of any of the Acquired Companies. There are no organizing, election, certification petitions, campaigns, or other activities pending or, to the Knowledge of the Company, threatened by or on behalf of any Union with respect to any Company Associate. No Union holds bargaining rights with respect to any Company Associate by way of certification, interim certification, voluntary recognition or succession rights, or has applied or, to the Knowledge of the Company, threatened to apply to be certified as the bargaining agent of any Company Associate. No Acquired Company has agreed to recognize any Union, nor has any Union been certified as the exclusive bargaining representative of any Company Associate. No Acquired Company is or has been the subject of a slowdown, strike, picketing, boycott, group work stoppage, labor dispute, attempt to organize or Union organizing activity, or any similar activity or dispute, affecting any of the Acquired Companies or any of their employees.

(l)Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, each Company Associate that currently renders or has rendered services to any of the Acquired Companies that is classified as a Contract Worker or other non-employee status or as an exempt or non-exempt employee, is properly characterized as such for all purposes, including: (i) for purposes of the Fair Labor Standards Act and similar applicable state, local, provincial and foreign Applicable Laws governing the payment of wages (including overtime and premium wages); (ii) Tax Applicable Laws; and (iii) unemployment insurance and worker’s compensation obligations, and the Acquired Companies have properly classified and treated each such individual in accordance with Applicable Laws and for purposes of all applicable Company Employee Plans and perquisites. No Contract Worker is eligible to participate in any Company Employee Plan.

(m)Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Person has claimed or has reason to claim that any Company Associate or other individual affiliated or associated with any Acquired Company: (i) is in violation of any term of any employment Contract, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement, any other restrictive covenant with such Person; (ii) has disclosed or utilized any trade secret or proprietary information or documentation of such Person; or (iii) has interfered in the employment relationship between such Person and any of its present or former employees. Except as would not have a material and adverse effect on the Acquired Companies taken as a whole, to the Knowledge of the Company, no Company Associate has used or proposed to use any trade secret, information or documentation confidential or proprietary to any former employer or other Person for whom such individual performed services or violated any confidential relationship with any Person in connection with the development, marketing or sale


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of any product or proposed product, or the development or sale of any service or proposed service, of any Acquired Company.

(n)Each Acquired Company is, and since January 1, 2020 has been, in compliance in all material respects with all Applicable Laws respecting labor and employment, including hiring practices, employment practices, terms and conditions of employment, wages, hours or other labor-related matters, including Applicable Laws relating to discrimination, equal pay, wages and hours, overtime, business expense reimbursements, labor relations, leaves of absence, paid sick leave laws, work breaks, classification of employees (including exempt and independent contractor status), occupational health and safety, immigration, privacy, fair credit reporting, harassment, retaliation, disability rights and benefits, reasonable accommodation, equal employment, fair employment practices, immigration, wrongful discharge or violation of personal rights including the Worker Adjustment and Retraining Notification Act (and any similar foreign, provincial, state or local statute or regulation) (the “WARN Act”). Since January 1, 2021, none of the Acquired Companies has effectuated a “plant closing” or “mass layoff” as those terms are used in the WARN Act and similar laws or has become subject to any obligation under any Applicable Law or otherwise to notify or consult with, prior to or after the Effective Time, any Governmental Authority or other Person with respect to the impact of the Contemplated Transactions. Each of the Acquired Companies has properly accrued in the ordinary course of business and in accordance with GAAP, and has timely made all payments for, all wages, overtime, salaries, commissions, bonuses, fees and other compensation, together with any related Taxes and any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, worker’s compensation, social security or other benefits or obligations (other than routine payments to be made in the ordinary course of business), for any services performed, directly or indirectly, for any Acquired Company.

(o)The Acquired Companies are, and since April 1, 2020 have been in compliance in all material respects with Applicable Laws regarding COVID-19 health and safety protocols. The Acquired Companies have also used commercially reasonable efforts to adhere to applicable guidance from applicable Governmental Authorities such as the U.S. Centers for Disease Control and Prevention and the federal Occupational Safety and Health Administration relating to COVID-19.

(p)Neither any Acquired Company nor any of its directors or officers, nor any management level employees, is under administrative, civil or criminal (i) indictment or audit or (ii) to the Knowledge of the Company, investigation, in each case by any Governmental Authority relating to labor or employment matters at an Acquired Company that reasonably would be expected to result in a notice of material violation, material finding of reasonable cause, or similar material adverse finding.

(q)Part 2.17(g) of the Company Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of each material Company Employee Plan and each material Company Employee Agreement. None of the Acquired Companies intends, and none of the Acquired Companies has committed, to establish or enter into any new arrangement that would constitute a Company Employee Plan or Company Employee Agreement, or to materially modify any Company Employee Plan or Company Employee Agreement (except to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any Applicable Laws, in each case as previously disclosed to Parent in writing or as required by this Agreement). The Company has Made Available to Parent, in each case, to the extent applicable: (i) accurate and complete copies of all documents setting forth the terms of each material Company Employee Plan and each material Company Employee Agreement, including all amendments thereto and all related trust documents; (ii) the most recent summary plan description, together with summaries of the material modifications thereto, if any, required


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under ERISA with respect to each material Company Employee Plan; (iii) all trust agreements, insurance contracts and funding agreements, including all amendments thereto; (iv) all discrimination and compliance tests required under the Code for the most recent plan year; (v) the most recent IRS determination or opinion letter issued with respect to each Company Employee Plan intended to be qualified under Section 401(a) of the Code; and (vi) all material, non-routine filings, notices, correspondence or other communications relating to any Company Employee Plan that was submitted to or received from the IRS, the Pension Benefit Guaranty Corporation, the DOL, the SEC, or any other Governmental Authority since January 1, 2020.

(r)Each Company Employee Plan has been established, maintained and operated in all material respects in accordance with its terms and in compliance in all material respects with all Applicable Laws, including ERISA and the Code. Any Company Employee Plan intended to be qualified under Section 401(a) of the Code and each trust intended to be qualified under Section 501(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, to the Knowledge of the Company, nothing has occurred since the date of the most recent determination that would reasonably be expected to adversely affect such qualification. Each other Company Employee Plan intended to be tax qualified under Applicable Laws is so tax qualified, and no event has occurred and no circumstance or condition exists that would reasonably be expected to result in the disqualification of any such Company Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan. Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material Liability to Parent, the Acquired Companies or any Company ERISA Affiliates or Parent ERISA Affiliates (other than ordinary administration expenses). There is no audit, inquiry or Legal Proceeding pending or, to the Knowledge of the Company, threatened or reasonably anticipated by the IRS, DOL, PBGC or any other Person with respect to any Company Employee Plan. None of the Acquired Companies or any Company ERISA Affiliate has ever incurred any material penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980H of the Code or any material penalty or Tax under Applicable Laws. Each of the Acquired Companies and Company ERISA Affiliates have timely made all contributions and other payments required by and due under the terms of each Company Employee Plan, except as would not result in material Liability and, to the extent not yet due, such contributions and other payments have been adequately accrued in accordance with GAAP in the consolidated financial statements (including any related notes) contained or incorporated by reference in the Company SEC Reports. None of the Acquired Companies or any Company ERISA Affiliate sponsors, maintains, participates in, or contributes to, or has an obligation to contribute to or has any Liability with respect to any Foreign Plan.

(s)None of the Acquired Companies, and no Company ERISA Affiliate, has ever maintained, established, sponsored, participated in, or contributed to, or been obligated to contribute to or has any Liability in respect of, any: (i) “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA or Section 412 of the Code; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; or (iv) a “voluntary employee’s beneficiary association” within the meaning of Section 501(c)(9) of the Code. No material Liability under Title IV or Section 302 of ERISA (other than any Liability for premiums due to the PBGC (which premiums have been paid when due)) has been incurred by the Acquired Companies or any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Acquired Companies or any Company ERISA Affiliate of incurring any such Liability. No Company Employee Plan subject to ERISA holds stock issued by the Company or any of its current Company ERISA Affiliates as a plan asset.


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(t)No Company Employee Plan or Company Employee Agreement provides (except at no cost to the Acquired Companies or any Affiliate of any Acquired Company), or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other Applicable Laws at the recipient’s sole premium expense. No Company Employee Plan provides or reflects or represents any Liability of any of the Acquired Companies or any Affiliate of any Acquired Company to provide, life insurance, health benefits or other welfare benefits to any member of the Company’s Board of Directors for any reason, unless such director is also an employee of an Acquired Company.

(u)Except as set forth in Part 2.17(k)-1 of the Company Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will (either alone or in combination with another event, whether contingent or otherwise): (i) result in any payment (whether of bonus, change in control, retention, severance pay or otherwise), acceleration, forgiveness of Indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Associate; or (ii) create any limitation or restriction on the right of any Acquired Company to merge, amend or terminate any Company Employee Plan or Company Employee Agreement. Without limiting the generality of the foregoing, except as set forth on Part 2.17(k)-2 of the Company Disclosure Schedule, no amount payable to any Company Associate as a result of the execution and delivery of this Agreement or the consummation of any of the Contemplated Transactions (either alone or in combination with any other event) would be an “excess parachute payment” within the meaning of Section 280G or would be nondeductible under Section 280G of the Code. None of the Acquired Companies has any obligation to compensate any Company Associate for any Taxes incurred by such Company Associate under Section 4999 of the Code.

(v)Each Company Employee Plan, Company Employee Agreement or other Contract between any Acquired Company and any Company Associate that is subject to U.S. law has been maintained and operated in documentary and operational compliance with Section 409A of the Code or an available exemption therefrom. None of the Acquired Companies is a party to or has any Liability under any Employee Plan, Company Employee Agreement or other Contract to compensate any person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A or 457A of the Code.

1.1Environmental Matters.

(w)Except as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect, and except as set forth on Part 2.20(a) of the Company Disclosure Schedule, each of the Acquired Companies is, and since January 1, 2020 has been, in compliance in all material respects with, and is not subject to any material Liability under, any applicable Environmental Law, which compliance includes timely applying for, possessing, maintaining, and complying with the terms and conditions of all Environmental Authorizations.

(x)The Company has Made Available to Parent a true and complete list of any material Environmental Authorization held by any of the Acquired Companies. No notice or consent is required for any such Environmental Authorization to remain in full force and effect following consummation of the Contemplated Transactions, except as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect.

(y)Except as would not have, and would not reasonably be expected to have a Company Material Adverse Effect, (i) there has been no Release of Hazardous Substances at any


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real property currently or formerly owned, operated or leased by any Acquired Company, and (ii) no Acquired Company has arranged, by contract, agreement or otherwise, for the transportation, treatment or disposal of Hazardous Substances at any location.

(z)There are no Legal Proceedings pending, or, to the Knowledge of the Company, threatened against any Acquired Company, and since January 1, 2020, or earlier for matters that remain unresolved, none of the Acquired Companies has received any written notice, request for information from a Governmental Authority, demand, letter, citation, summons, complaint, penalty or claim that alleges that any of the Acquired Companies is not in material compliance with, any Environmental Law, except in each case as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect.

(aa)The Acquired Companies have Made Available to Parent copies of all material assessments, reports, audits and all material documents in their possession or under their control that relate to the Acquired Companies’ compliance with or any Liability under any Environmental Law or the environmental condition of any real property that any of the Acquired Companies currently own, operate or lease or formerly have owned, operated, or leased.

1.1Insurance. The Company has Made Available to Parent copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets and operations of the Acquired Companies. Each of such insurance policies is in full force and effect, no written notice of default or termination has been received by any Acquired Company in respect thereof and all premiums (including retrospective or similar premiums or adjustments) due thereon have been paid in full, except in each case as would not have, and would not reasonably be expected to have, a Company Material Adverse Effect. Since January 1, 2021, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, other communication regarding any actual or possible: (a) cancellation or invalidation of any material insurance policy; (b) refusal of any coverage or rejection of any material claim under any insurance policy; or (c) material adjustment in the amount of the premiums payable with respect to any insurance policy.

1.2Takeover Statutes; No Rights Plan. The Company’s board of directors has taken all actions necessary to ensure that the restrictions applicable to business combinations contained in Section 203 of the DGCL are, and will be, inapplicable to the execution, delivery and performance of this Agreement and the Support Agreements and to the consummation of the Merger and the other Contemplated Transactions. None of such actions by the Company’s board of directors has been amended, rescinded or modified. Assuming the accuracy of Parent’s representations and warranties in Section 3.16, there are no other “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statutes or regulations (each, a “Takeover Statute”) applicable to, or purporting to be applicable to, this Agreement, any Support Agreement, the Merger or any of the other Contemplated Transactions, including any Takeover Statute that would limit or restrict Parent or any of its Affiliates from exercising all rights in respect of ownership of shares of Company Common Stock outstanding and held by Parent immediately after giving effect to the Merger. The Company has no stockholder rights plan, “poison pill” or similar agreement or arrangement that has or was designed to have the effect of delaying, deferring or discouraging any Person from acquiring control of the Company or making any such acquisition of control of the Company more expensive.

1.3Vote Required. The affirmative vote of the holders of a majority of the shares of Company Common Stock outstanding on the record date for the Company Stockholders’ Meeting (the “Required Company Stockholder Vote”) is the only vote of the holders of any class or series of the Company’s capital stock, or any holders of any other


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securities of any Acquired Company, necessary to adopt, approve or authorize this Agreement and approve or authorize the Merger.

1.4Fairness Opinion. The Company’s board of directors has received the written opinion of William Blair & Company, L.L.C. (“Blair”), financial advisor to the Company, dated August 9, 2022, to the effect that the Exchange Ratio is fair, from a financial point of view, to the stockholders of the Company. The Company will furnish an accurate and complete copy of such written opinion to Parent, and the Company has received the consent of Blair to include such opinion in the Joint Proxy Statement.

1.5Advisors’ Fees. Except for Blair, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Merger or any of the other Contemplated Transactions based upon arrangements made by or on behalf of any of the Acquired Companies. The Company has furnished to Parent accurate and complete copies of all agreements under which any such fees, commissions or other amounts have been paid or may become payable and all indemnification and other agreements related to the engagement of Blair.

1.6Disclosure. None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or (ii) the Joint Proxy Statement will, at the date it is first mailed to the Company’s stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint Proxy Statement shall comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder.

1.7No Additional Representations; No Outside Reliance.

(ab)Except for the representations and warranties contained in this Section 2, or any certificate delivered by or on behalf of the Company pursuant to Section 6 of this Agreement, neither the Company nor any of their Affiliates, nor any other Person makes or shall be deemed to make any representations or warranties to Parent or Merger Sub, express or implied, at law or in equity, by or on behalf of the Company with respect to the Company (or their respective business, assets, liabilities, condition, operations or results of operations) or the transactions contemplated by this Agreement, and the Company hereby disclaims any such representations or warranties with respect to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

(ac)Notwithstanding anything contained in this Section 2 or any other provision hereof, the Company acknowledges and agrees that none of Parent, Merger Sub or any of their respective Affiliates nor any other Person has made, or is making, any representation or warranty whatsoever, oral or written, express or implied (and none of the Company or its Affiliates or their respective directors, officers, employees, equityholders, partners, members, agents or representatives has relied on any representation, warranty or statement of any kind by Parent, Merger Sub, any of their respective Affiliates or any other Persons), except for those expressly given in Section 3 or in any certificate delivered by or on behalf of Parent or Merger Sub under Section 7, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of


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Parent, Merger Sub or any of their respective Subsidiaries. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be contained or referred to in the schedules or elsewhere, as well as any information, documents or other materials or management presentations or due diligence discussions that have been or shall hereafter be provided to or engaged in with the Company or any of its Affiliates or any of their respective directors, officers, employees, equityholders, partners, members, agents or representatives are not and will not be deemed to be representations or warranties of Parent, Merger Sub or any of their respective Affiliates or any other Person, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Section 3 or in any certificate delivered by or on behalf of Parent or Merger Sub under Section 7. Except as otherwise expressly set forth in this Agreement, the Company understands and agrees that any inventory, equipment, vehicles, assets, properties and business of Parent, Merger Sub and its Subsidiaries are furnished “as is”, “where is” and, subject only to the representations and warranties contained in Section 3 or in any certificate delivered by or on behalf of Parent or Merger Sub under this Agreement with all faults and without any other representation or warranty of any nature whatsoever. The provisions of this Section 2.25(b) shall not, and shall not be deemed or construed to, waive or release any claims for fraud.

Section 3.Representations and Warranties of Parent and Merger Sub

Parent and Merger Sub represent and warrant to the Company as follows, it being understood that each representation and warranty contained in this Section 3 is subject to: (a) the exceptions and disclosures set forth in the Parent Disclosure Schedule (subject to Section 9.6); and (b) disclosure in any Parent SEC Report filed with the SEC and publicly available on EDGAR at least one (1) Business Day before the date of this Agreement, but excluding any disclosure contained under the heading “Risk Factors,” any disclosure of risks included in any “forward-looking statements” disclaimer and any other information, statement or other disclosure that is similarly predictive, cautionary or forward-looking in nature:

1.22Due Organization; Subsidiaries.

(a)Parent and Merger Sub are each a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and each of Parent’s Subsidiaries is duly organized, validly existing and in good standing (with respect to jurisdictions that recognize such concept) under the laws of the jurisdiction of its organization. Except as would not reasonably be expected to have or result in a Parent Material Adverse Effect, Parent and Merger Sub have the necessary corporate power and authority: (i) to conduct their respective businesses in the manner in which their respective businesses are currently being conducted; (ii) to own and use their respective assets in the manner in which their respective assets are currently owned and used; and (iii) to perform their respective obligations under all Contracts by which they are respectively bound. Each of Parent and Merger Sub is qualified, registered or licensed to do business as a foreign entity, and is in good standing (with respect to jurisdictions that recognize such concept), under the laws of all jurisdictions where the nature of its business or the ownership or use of their respective assets requires such qualification, registration or licensure, except where that failure to be so qualified, registered or licensed would not reasonably be expected to have or result in a Parent Material Adverse Effect.

(b)Part 3.1(b)-1 of the Parent Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of the name and jurisdiction of organization of each Subsidiary of Parent. Except as set forth in Part 3.1(b)-2 of the Parent Disclosure Schedule, (i) neither Parent nor Merger Sub owns any capital stock of, or any equity interest of any nature in, any other Entity, other than a Subsidiary of Parent, (ii) neither Parent nor Merger Sub has at any time been a general partner of any general or limited partnership and (iii) neither Parent nor


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Merger Sub has agreed or is obligated to make, or is bound by any Contract under which it may become obligated to make, any future investment in or capital contribution to any other Entity.

1.23Organizational Documents. Parent has Made Available to the Company accurate and complete copies of the certificate of incorporation and bylaws of Parent and Merger Sub, including all amendments and supplements thereto as of the date of this Agreement. Neither Parent nor Merger Sub is in violation of any of the provisions of the certificate of incorporation or bylaws, including all amendments thereto, of such Entity, except where such violation would not reasonably be expected to have a result in a Parent Material Adverse Effect.

1.24Capitalization.

(a)The authorized capital stock of Parent consists of: (i) 500,000,000 shares of Parent Common Stock, of which 85,115,909 shares have been issued and are outstanding as of the Measurement Time; and (ii) 1,000,000 shares of Parent Preferred Stock, of which no shares have been issued or are outstanding. As of the Measurement Time, no shares of Parent Common Stock are held by Parent as treasury stock. All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There is no Parent Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock. Except as set forth in Part 3.3(a) of the Parent Disclosure Schedule, Parent is not under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock or other securities.

(b)As of the Measurement Time: (i) 1,486,651 shares of Parent Common Stock are subject to issuance pursuant to Parent Stock Options granted and outstanding under the Parent Equity Plans; (ii) 9,104,031 shares of Parent Common Stock are subject to issuance and/or delivery pursuant to Parent RSU Awards granted and outstanding under the Parent Equity Plans; (iii) 1,021,544 shares of Parent Common Stock are subject to issuance and/or delivery pursuant to Parent PSU Awards granted and outstanding under the Parent Equity Plans (reflecting shares of Parent Common Stock that vest based on performance-based vesting requirements assuming deemed achievement of maximum performance); (iv) no Parent Equity Awards are outstanding other than those granted under the Parent Equity Plans and referenced in the preceding clauses (i) through (iii); (v) 575,862 shares of Parent Common Stock are reserved for future issuance pursuant to Parent Equity Awards not yet granted under the Parent Equity Plans; and (vi) 3,000,109 Parent Earnout Shares are subject to cancelation in the event of the failure to satisfy certain performance thresholds set forth in the IAC Merger Agreement.

(c)Parent has Made Available to the Company accurate and complete copies of all equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which any stock options, restricted stock units or performance stock units (including all outstanding Parent Equity Awards, whether payable in equity, cash or otherwise) are currently outstanding as of the date of this Agreement, and the forms of all stock option, restricted stock unit and performance stock unit award agreements evidencing such outstanding stock options, restricted stock units or performance stock units (whether payable in equity, cash or otherwise) as of the date of this Agreement. The exercise price of each Parent Stock Option was, on the date of grant of such Parent Stock Option no less than the fair market value of a share of Parent Common Stock as determined on the date of grant of such Parent Stock Option. All grants of Parent Equity Awards were recorded on Parent’s financial statements (including any related notes thereto) contained in the Parent SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise).


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(d)Except as set forth in Part 3.3(b) of the Parent Disclosure Schedule and for shares of Parent Common Stock issued following the Measurement Time pursuant to the exercise or vesting of Parent Equity Awards outstanding as of the Measurement Time, as of the date of this Agreement there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent or any of its Subsidiaries; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any of its Subsidiaries; or (iii) Contract under which Parent or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.

(e)All outstanding shares of Parent Common Stock, options, warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and other securities of Parent have been issued and granted in compliance with: (i) all applicable securities laws and other Applicable Laws; and (ii) all requirements set forth in applicable Contracts.

(f)All of the outstanding shares of capital stock of each of the Parent’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal Liability attaching to the ownership thereof, and are owned beneficially and of record by Parent or a Subsidiary of Parent, free and clear of any Encumbrances, except for Permitted Encumbrances.

(g)Parent directly or indirectly owns all of the outstanding shares of capital stock of Merger Sub. Merger Sub has not, since the date of its incorporation engaged in any activities other than (i) in connection with the preparation, negotiation and execution of this Agreement or the consummation of the transactions contemplated hereby or as expressly contemplated by this Agreement or (ii) those incident or related to its incorporation.

1.25Authority; Binding Nature of Agreement. Parent and Merger Sub have all necessary corporate power and authority to enter into and to perform their respective obligations under this Agreement and to consummate the Contemplated Transactions, subject only to (i) the adoption of this Agreement by Parent in its capacity as sole stockholder of Merger Sub, (ii) the adoption and approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote and (iii) if applicable, the adoption and approval of an amendment to Parent’s certificate of incorporation to effect the Parent Reverse Stock Split by a majority of the outstanding shares of Parent Common Stock entitled to vote on the proposal to approve the Parent Reverse Stock Split. The board of directors of Parent (at a meeting duly called and held) has, by unanimous vote of all directors of Parent: (a) determined that the Merger is advisable and fair to, and in the best interests of, Parent and its stockholders; (b) authorized and approved the execution, delivery and performance of this Agreement by Parent and approved the Merger; and (c) recommended the approval of the Parent Common Stock Issuance by the holders of Parent Common Stock and directed that the Parent Common Stock Issuance be submitted for adoption by Parent’s stockholders at the Parent Stockholders’ Meeting. This Agreement has been duly executed and delivered by Parent and Merger Sub and, assuming due execution and delivery by the Company constitutes the legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, subject to the Enforceability Exceptions.

1.26Non-Contravention; Consents. Neither the execution, delivery or performance of this Agreement nor the consummation of the Merger or any of the other Contemplated Transactions will directly or indirectly (with or without notice or lapse of time):

(a)contravene, conflict with or result in a violation of (i) any of the provisions of the certificate of incorporation, bylaws, certificate of formation or limited partnership,


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partnership agreement or other charter or organizational or governing documents of Parent or any of its Subsidiaries or (ii) any resolution adopted by the stockholders or equityholders, the board of directors (or similar governing body) or any committee of the board of directors (or similar governing body) of Parent or any of its Subsidiaries;

(b)subject to any filings, notices or Consents referenced in the following sentence, contravene, conflict with or result in a violation of, or give any Governmental Authority or other Person the right to challenge the Merger or any of the other Contemplated Transactions or to exercise any remedy or obtain any relief under, any Applicable Law or any Order to which Parent or any of its Subsidiaries, or any of the assets owned or used by Parent or any of its Subsidiaries, is subject;

(c)subject to any filings, notices or Consents referenced in the following sentence, contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Authority the right to revoke, withdraw, suspend, cancel, terminate or modify, any Governmental Authorization that is held by Parent or any of its Subsidiaries or that otherwise relates to the business of Parent or any of its Subsidiaries or to any of the assets owned or used by Parent or any of its Subsidiaries;

(d)subject to any notices or Consents set forth in Part 3.5 of the Parent Disclosure Schedule, contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any Parent Material Contract, or give any Person the right to: (i) declare a default or exercise any remedy under any Parent Material Contract; (ii) a penalty under any Parent Material Contract; (iii) accelerate the maturity or performance of any Parent Material Contract; or (iv) cancel, terminate or modify any right, benefit, obligation or other term of any Parent Material Contract; or

(e)result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by Parent or any of its Subsidiaries other than Permitted Encumbrances; other than in the case of clauses (b) through (e), any such filings, notices, Consents, contraventions, conflicts, violations, breaches or defaults that, individually or in the aggregate, would not reasonably be expected to have the effect of preventing, delaying, making illegal or otherwise interfering with, the Merger or any of the Contemplated Transactions.

1.27SEC Filings; Financial Statements; Internal Controls

(h)Parent has Made Available to the Company accurate and complete copies of all registration statements, proxy statements, Certifications and other reports, schedules, forms, statements and other documents filed or furnished by Parent with the SEC and all amendments thereto, in each case between January 1, 2020 and the date of this Agreement (the “Parent SEC Reports”). All statements, reports, schedules, forms and other documents required to have been filed by Parent with the SEC have been so filed on a timely basis. None of Parent’s Subsidiaries is required to file any documents with the SEC. As of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the Parent SEC Reports complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act (as the case may be); and (ii) none of the Parent SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to each annual report on Form 10-K and each quarterly report on Form 10-Q included in the Parent SEC Reports, the principal executive officer and principal financial officer of Parent have made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act, and the statements contained in such certifications were accurate and complete as of its date. As of the date of this


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Agreement, there are no unresolved comments issued by the staff of the SEC with respect to any of the Parent SEC Reports. As of the date of this Agreement, to the Knowledge of Parent, none of the Parent SEC Reports is the subject of any ongoing review by the SEC.

(a)The audited consolidated financial statements and unaudited consolidated interim financial statements of Parent contained or incorporated by reference in the Parent SEC Reports: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC, and except that the unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments that will not, individually or in the aggregate, be material in amount); and (iii) fairly present the consolidated financial position of Parent and its consolidated subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of Parent and its consolidated subsidiaries for the periods covered thereby. No financial statements of any Person other than Parent and its Subsidiaries are required by GAAP to be included in the consolidated financial statements of Parent.

(b)Parent maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accounting for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(c)Parent maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information concerning Parent and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of Parent’s filings with the SEC and other public disclosure documents and such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. Parent has disclosed, based on its most recent evaluation of internal control over financial reporting, to Parent’s auditors and the audit committee of Parent’s board of directors and in a Parent SEC Report (i) any significant deficiency or material weakness in the design or operation of its internal control over financial reporting that is reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or any other employee or service provider who has (or has had) a significant role in Parent’s internal control over financial reporting. Parent is in compliance in all material respects with the applicable listing and other rules and regulations of Nasdaq, and, since January 1, 2020, has not received any notice from Nasdaq asserting any material non-compliance with such rules and regulations.

(d)Parent is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act. Parent does not have outstanding, or have arranged any outstanding, “extension of credit” to any director or executive officer within the meaning of Section 402 of the Sarbanes-Oxley Act.

(e)Since January 1, 2020, there have been no changes in any of Parent’s accounting policies or in the methods of making accounting estimates or changes in estimates


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that, individually or in the aggregate, are material and adverse to Parent’s financial statements (including, any related notes thereto) contained in the Parent SEC Reports, except as described in the Parent SEC Reports.

(f)Since January 1, 2020, all transactions, agreements, arrangements or understandings between Parent or any of its Subsidiaries, on the one hand, and any other Person, on the other hand, that were required to be disclosed pursuant to Item 404 of Regulation S-K were disclosed in Parent SEC Reports, as applicable.

1.8Absence of Changes. Since January 1, 2022 through the date of this Agreement, there has not been any Parent Material Adverse Effect, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Parent Material Adverse Effect.

1.9Legal Proceedings; Orders.

(g)As of the date of this Agreement, there is no pending Legal Proceeding and, to the Knowledge of Parent, no Person has threatened to commence any Legal Proceeding: (i) that involves any of Parent or its Subsidiaries or any of the assets owned or used by any of Parent or its Subsidiaries, except for Legal Proceedings that, individually or in the aggregate, are not and would not reasonably be expected to be a Parent Material Adverse Effect; or (ii) challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Merger or any of the Contemplated Transactions. To the Knowledge of Parent, no event has occurred, and no claim, dispute or other condition or circumstance exists, that reasonably would be expected to give rise to or serve as a basis for the commencement of any such Legal Proceeding.

(h)There is no Order to which any of Parent or its Subsidiaries, or any of the assets owned or used by any of Parent or its Subsidiaries, is subject, except for Orders that, individually or in the aggregate, are not and would not reasonably be expected to be a Parent Material Adverse Effect. No officer of any of Parent or its Subsidiaries is subject to any Order that prohibits such officer from engaging in or continuing any conduct, activity or practice relating to the business of any of Parent or its Subsidiaries that would be reasonably expected to be a Parent Material Adverse Effect.

1.2Title to Assets Except as would not reasonably be expected to have a Parent Material Adverse Effect, Parent and its Subsidiaries own, and have good and valid title to, all material assets owned or purported to be owned by them, including: (a) all assets reflected on the Parent Balance Sheet (except for inventory sold or otherwise disposed of in the ordinary course of business since the date of the Parent Balance Sheet); and (b) all other assets reflected in the books and records of Parent and its Subsidiaries as being owned by Parent or its Subsidiaries. Except as would reasonably be expected to have a Parent Material Adverse Effect, all of such assets are owned by Parent or its Subsidiaries free and clear of any Encumbrances, except for Permitted Encumbrances.

1.1Real Property; Equipment; Leasehold.

(i)Part 3.10(a) of the Parent Disclosure Schedule sets forth an accurate and complete description of real property owned by Parent or any of its Subsidiaries (“Parent Owned Real Property”). Except as set forth in Part 3.10(a) of the Parent Disclosure Schedule, the Parent does not own any real property or any interest in real property. Except as would reasonably be expected to have a Parent Material Adverse Effect, Parent and its subsidiaries are the sole owners of the Parent’s Owned Real Property and have good, valid and marketable fee simple title to the


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Parent’s Owned Real Property, and the Parent’s Owned Real Property is free and clear of any Encumbrances, except for Permitted Encumbrances.

(j)Except as would not reasonably be expected to be a Parent Material Adverse Effect: (i) Part 3.10(b) of the Parent Disclosure Schedule sets forth an accurate and complete list of each Lease entered into by the Parent; (ii) Parent is the sole holder of good, valid and subsisting leasehold interests in and to all of the Parent Leased Real Property, and the Parent’s interests in the Parent Leased Real Property are free and clear of any Encumbrances, except for Permitted Encumbrances; (iii) of the Parent’s Leases are (A) valid, binding on and enforceable against the Parent and, to the Knowledge of Parent, each of the parties thereto, subject to the Enforceability Exceptions, and (B) are in full force and effect, have not been modified, amended or supplemented, in writing or otherwise, and all material rents, additional rents and other amounts due to date pursuant to each Lease have been paid; (iv) to the Knowledge of Parent, Parent has not breached such Lease in any material respect, nor has any event or omission occurred which, with the giving of notice or the lapse of time, or both, would constitute a material breach or default under any Lease; and (v) Parent has Made Available to the Company accurate and complete copies of all Leases.

(k)Except as would not reasonably be expected to be a Parent Material Adverse Effect, Parent has not made any alterations, additions or improvements to the Parent’s Leased Real Property that are required to be removed at the termination of the applicable lease term, and the present use and operation of the Parent’s Owned Real Property and the Parent’s Leased Real Property is authorized by, and is in compliance with all Applicable Laws. There is no Legal Proceeding pending, or, to the Knowledge of the Parent threatened, that challenges or adversely affects, or would challenge or adversely affect, the continuation of the present use or operation of any of Parent’s Owned Real Property or Parent’s Leased Real Property, except for Legal Proceedings that, individually or in the aggregate, are not and would not reasonably be expected to be Parent Material Adverse Effect.

(l)Except as would not reasonably be expected to be a Parent Material Adverse Effect (i) there are no leases, subleases, licenses, occupancy agreements or other contractual obligations that grant the right of use or occupancy of any of the Parent Owned Real Property or Parent Leased Real Property to any Person other than a Parent Subsidiary, (ii) there is no Person in possession of any of the Parent Owned Real Property or Parent Leased Real Property other than its subsidiaries, and (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any of the Parent Owned Real Property or any portion thereof or interest therein.

1.3Intellectual Property.

(m)Part 3.11(a) of the Parent Disclosure Schedule accurately identifies: each item of material Registered IP in which Parent has (or purports to have) an ownership interest, including the jurisdiction in which such item of material Registered IP has been registered or filed and the applicable application, registration or serial number and date and the record owner, in each case as of the date of this Agreement and except as would not reasonably be expected to be a Parent Material Adverse Effect.

(n)Parent owns all rights, title and interest in and to the material Parent IP (other than Intellectual Property and Intellectual Property Rights licensed to Parent under Parent Inbound Licenses), free and clear of any Encumbrances, except for Permitted Encumbrances, except as would not reasonably be expected to be a Parent Material Adverse Effect. Without limiting the generality of the foregoing and except as would not reasonably be expected to be a Parent Material Adverse Effect: (i) all documents and instruments necessary to perfect the rights of Parent in the Parent IP that is material Registered IP have been validly executed, delivered and


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filed with the appropriate Governmental Authority; (ii) each Person who is or was involved in the creation, contribution or development of any material Parent IP in the course of that Person’s work with or for Parent has assigned to a Subsidiary all such Intellectual Property and Intellectual Property Rights and is bound by confidentiality provisions protecting such material Intellectual Property Rights; (iii) Parent has taken reasonable steps to maintain the confidentiality of its trade secrets and other confidential information, and to otherwise protect, create, enforce, maintain and preserve its material Intellectual Property Rights, and, to the Knowledge of Parent, there has been no material violation, infringement or unauthorized access or disclosure of the foregoing; and (iv) to the Knowledge of the Parent, Parent and its Subsidiaries own or otherwise have sufficient rights in, and after the Closing the Surviving Corporation will continue to own and otherwise have sufficient rights in, all material Intellectual Property Rights necessary to conduct the business of Parent and its Subsidiaries as currently conducted and currently planned by Parent and its Subsidiaries to be conducted.

(o)All Parent IP that is material Registered IP is subsisting, and, to the Knowledge of Parent, valid and enforceable. Without limiting the generality of the foregoing, no Legal Proceeding is or has been pending or, to the Knowledge of Parent, threatened, in which the ownership, scope, validity or enforceability of any material Parent IP is being or has been contested or challenged.

(p)To the Knowledge of Parent, (i) Parent is not infringing, misappropriating, or otherwise violating any material Intellectual Property or Intellectual Property Right of any other Person, and (ii) none of the Parent Products or the conduct of the business of Parent infringes, violates or otherwise violates any material Intellectual Property Right of any other Person, and (iii) no Person infringing, misappropriating, or otherwise violating any material Parent IP. Without limiting the generality of the foregoing: (A) to the Knowledge of the Parent, no infringement, misappropriation or similar claim or Legal Proceeding is pending or, threatened against Parent; and (B) since January 1, 2020, Parent has not received any written notice or other communication relating to any actual, alleged or suspected infringement, misappropriation, violation or unlawful use by any Parent Product of any material Intellectual Property or material Intellectual Property Right of another Person.

(q)No Parent Software contains, is derived from, is distributed or made available with, or is being or was developed using Open Source Software in a manner such that the terms under which such Open Source Software is licensed impose a requirement or condition that Parent grants a license under or to, or refrain from asserting or enforcing a Parent IP right intended by Parent to retained as confidential, or that would require a part of any Parent Software intended to be retained as confidential be: (i) disclosed, distributed or made available in source code form; (ii) licensed for the purpose of making modifications or derivative works; or (iii) redistributable at no or minimal charge, in each case, except as would not reasonably be expected to be a Parent Material Adverse Effect.

(r)Except as would not reasonably be expected to be a Parent Material Adverse Effect, Parent’s receipt, collection, monitoring, maintenance, creation, transmission, transfer, use, processing, analysis, disclosure, storage, disposal and security of Protected Information has complied, and complies with: (i) each Parent Contract in all material respects; (ii) applicable Information Privacy and Security Laws; and (iii) publicly published privacy policies adopted by Parent relating to Protected Information in all material respects. Except as would not reasonably be expected to be a Parent Material Adverse Effect, Parent has adopted, and are and have been in compliance in all material respects with, reasonable policies and procedures designed to maintain the security of Protected Information gathered or accessed in the course of the operations of Parent.


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(s)Parent protects in all material respects the confidentiality, integrity and security of its Protected Information and its IT Systems against any unauthorized use, access, interruption, modification or corruption, except as would not reasonably be expected to be a Parent Material Adverse Effect. Parent is taking, and has at all times taken, all reasonable measures to ensure that any Protected Information collected or handled by authorized third parties acting on behalf of Parent provides similar safeguards, in each case, in compliance in all material respects with applicable Information Privacy and Security Laws and consistent with general industry standards.

(t)Except as would not reasonably be expected to be a Parent Material Adverse Effect, to the Knowledge of Parent, no material Parent Technology contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry), disabling codes or other vulnerabilities, faults or any other code designed or intended to have, any of the following functions: disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, Protected Information, information processed by Parent Technology, or a computer system or network or other device on which such code is stored or installed. To the Knowledge of Parent, there has been no material data security breach of any material IT System, or material unauthorized acquisition, access, use or disclosure of any Protected Information, owned, transmitted, used, stored, received or controlled by or on behalf of Parent, or investigation, audit, complaint or litigation relating to any data security breach or violation of Information Privacy and Security Laws by Parent, except as would not reasonably be expected to be a Parent Material Adverse Effect.

1.10Material Contracts.

(u)Part 3.12(a) of the Parent Disclosure Schedule accurately identifies:

(i)any Parent Contract relating to the employment of, or the performance of services by, any employee or consultant (other than standard offer letters in form and substance consistent with the forms Made Available to Parent);

(ii)any Parent Contract, including any stock option plan, stock appreciation right plan, restricted stock or stock unit plan, stock purchase plan or other equity incentive plan, any of the benefits of which will be triggered or increased, or the vesting of any of the benefits of which will be accelerated, by the consummation of any of the Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions (either alone or in connection with a previous or subsequent termination of employment or service in combination therewith);

(iii)any Parent Contract relating to the development, sale or disposition of any Parent Owned Real Property;

(iv)any Parent Contract that provides for indemnification of any director or officer of Parent or Merger Sub;

(v)any Parent Contract: (A) involving a material joint venture, strategic alliance, partnership or material teaming agreement, or involving the sharing of profits or revenue; or (B) for any capital expenditure in excess of $500,000 individually or $1,000,000 in the aggregate;

(vi)each material Parent Inbound License, and each material Parent Outbound License (other than a Parent Contract with a Parent Associate entered into in the ordinary course of business in which ownership of any Intellectual Property or Intellectual


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Property Rights created in the course of performing services are assigned to and owned exclusively by Parent);

(vii)any Parent Contract entered into at any time since January 1, 2020: (A) relating to the disposition or acquisition by Parent of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) for consideration in excess of $1,000,000 individually or $5,000,000 in the aggregate for all such Parent Contracts; or (B) pursuant to which Parent will acquire any interest, or will make an investment, for consideration in excess of $5,000,000 in any other Person, other than Parent’s Subsidiaries;

(viii)any Parent Contract relating to the disposition or acquisition by a Subsidiary of any business, product line or other assets outside the ordinary course of business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) in each case that contains continuing indemnification obligations of its Subsidiaries that are material to its Subsidiaries taken as a whole, or any remaining “earn out” or other contingent payment or consideration of its Subsidiaries or any of its Subsidiaries that has not been satisfied in full prior to the date of this Agreement.

(ix)any Parent Contract containing any standstill or similar provisions that limit or restrict: the ability of a Person to acquire any securities or assets of Parent;

(x)any Parent Contract that materially limits or restricts the right or ability of Parent: (A) to engage in any line of business or compete with, or provide any service to, any other Person or in any geographic area; (B) to acquire any material product or other asset or any service from any other Person, sell any product or other asset to or perform any service for any other Person, or transact business or deal in any other manner with any other Person; or (C) to develop, sell, supply, license, distribute, offer, support or service any product or any material Intellectual Property or other asset to or for any other Person other than in the ordinary course of business;

(xi)any Parent Contract that: (A) grants material exclusive rights to market, sell or deliver any product or service of Parent; (B) contains any “most favored nation” or similar provision in favor of the counterparty; (C) contains a material right of first refusal, first offer or first negotiation or any similar right with respect to an asset owned by Parent; or (D) provides for a “sole source” or similar relationship or contains any provision that requires the purchase of all or a material portion of Parent’s requirements from any third party;

(xii)any settlement, conciliation or similar Parent Contract arising out of a Legal Proceeding or threatened Legal Proceeding: (A) that materially restricts or imposes any material obligation on Parent or materially disrupts the business of any of Parent as currently conducted; or (B) that would require Parent to pay consideration valued at more than $500,000 in the aggregate following the date of this Agreement;

(xiii)any Parent Contract evidencing Indebtedness of the Parent in excess of $10,000,000;

(xiv)each Parent Contract (excluding purchase orders given or received in the ordinary course of business) under which any of Parent (A) paid in excess of $1,000,000 in fiscal year 2021 or (B) received in excess of $1,000,000 in fiscal year 2021;

(xv)each lease or rental Parent Contract involving personal property (and not relating primarily to real property) pursuant to which Parent is required to make rental


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payments in excess of $200,000 per month (excluding leases or rental Parent Contracts for office equipment entered into in the ordinary course of business);

(xvi)any other Parent Contract, if a breach of such Parent Contract could reasonably be expected to have or result in a Material Adverse Effect.

For purposes of this Agreement, Parent Contracts of the type required to be set forth in Part 3.12(a) of the Parent Disclosure Schedule and any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act) shall be deemed to constitute a “Parent Material Contract.” The Parent has Made Available to the Company an accurate and complete copy of each Parent Material Contract.

(v)Except as will not, and would not reasonably be expected to, result in a Parent Material Adverse Effect, each Parent Contract that constitutes a Material Contract is in full force and effect and is valid, binding and enforceable in accordance with its terms, subject to the Enforceability Exceptions. Except as will not, and would not reasonably be expected to, result in a Parent Material Adverse Effect neither Parent nor Merger Sub, to the Knowledge of Parent, Parent, Merger Sub and no other Person, has materially violated or breached, or committed any material default under, any Material Contract. Except as will not, and would not reasonably be expected to, result in a Parent Material Adverse Effect, to the Knowledge of Parent, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to: (i) result in a violation or breach of any of the provisions of any Material Contract; (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract; (iii) give any Person the right to receive or require a penalty under any Material Contract; (iv) give any Person the right to accelerate the maturity or performance of any Material Contract (or any material obligation thereunder); or (v) give any Person the right to cancel, terminate or modify any Material Contract. Since January 1, 2020, Parent has not received any written notice or, to the Knowledge of Parent, other communication regarding an allegation of, or breach of, or default under, any Material Contract, except for such breaches or defaults which would not reasonably be expected to result in a Parent Material Adverse Effect.

1.8Liabilities. As of the date hereof, Parent has no Liability that would be required to be recorded as a liability on a balance sheet prepared in accordance with GAAP (or required to be disclosed in the footnotes thereto under GAAP), except for: (i) Liabilities identified as such and in the amounts stated in the Parent Balance Sheet; (ii) normal and recurring current Liabilities that have been incurred by Parent since the date of the Parent Balance Sheet in the ordinary course of business; (iii) Liabilities for performance of obligations of Parent not yet due under Parent Contracts; (iv) Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or otherwise in connection with the Contemplated Transactions, (v) Liabilities described and in the amounts stated in Part 3.10 of the Parent Disclosure Schedule; and (vi) other Liabilities that in the aggregate would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect.

1.9Compliance with Applicable Laws.

(w)Each of Parent and its Subsidiaries is, and at all times since January 1, 2020 has been, in compliance with all Applicable Laws, except for such non-compliance which would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect. Since January 1, 2020, neither Parent nor any of its Subsidiaries has received any written notice or, to the Knowledge of Parent, other communication from any Governmental Authority or other Person regarding any actual or possible material violation of, or failure to comply with, any Applicable Law, except, in each case, for any such violation of failure to comply that would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect.


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(x)Neither Parent nor any of its Subsidiaries, and, to the Knowledge of Parent, no director, officer, other employee or agent or third party acting on behalf of any of Parent or its Subsidiaries, has directly or indirectly: (i) used any funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made, offered, or authorized any unlawful payment to any foreign or domestic government official or employee or to any foreign or domestic political party or campaign or violated any provision of any applicable anti-corruption or anti-bribery Applicable Law, including the Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act of 2010 and any other comparable law of a jurisdiction outside the United States; or (iii) made, offered or authorized any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment except in each case of (i) through (iii), as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect. For purposes of this Section 3.14(b), an “unlawful payment” shall include any transfer of funds or any other thing of value, such as a gift, transportation or entertainment, which transfer is contrary to any Applicable Law, including any payment to a third party all or part of the proceeds of which is used for a corrupt payment. To the Knowledge of Parent, since January 1, 2020, neither Parent nor any of its Subsidiaries under their control has been investigated, charged or prosecuted for any violation of any Applicable Law in respect of the matters contemplated by this Section 3.14(b). Neither Parent nor any of its Subsidiaries has disclosed to any Governmental Authority information that establishes or indicates that Parent or any of its Subsidiaries violated or may have violated any Applicable Law in respect of the matters contemplated by this Section 3.14(b), or are aware of any circumstances that would reasonably be expected to give rise to such an investigation in the future, except, in each case, as would not have, and would reasonably be expected to have, a Parent Material Adverse Effect.

1.4Insurance. The Parent has Made Available to Company copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets and operations of the Parent. Each of such insurance policies is in full force and effect, no written notice of default or termination has been received by Parent in respect thereof and all premiums (including retrospective or similar premiums or adjustments) due thereon have been paid in full. Since January 1, 2021, Parent has not received any written notice or, to the Knowledge of the Parent, other communication regarding any actual or possible: (a) cancellation or invalidation of any insurance policy; (b) refusal of any coverage or rejection of any material claim under any insurance policy; or (c) material adjustment in the amount of the premiums payable with respect to any insurance policy.

1.5Takeover Statutes. Assuming the accuracy of the Company’s representations in Section 2.20, Parent’s board of directors has taken all actions necessary to ensure that the restrictions applicable to business combinations contained in Section 203 of the DGCL are, and will be, inapplicable to the execution, delivery and performance of this Agreement and the Support Agreements and to the consummation of the Merger and the other Contemplated Transactions.

1.6Governmental Authorizations. Except as would not have, and would not reasonably be expected to have a Parent Material Adverse Effect, Parent and its Subsidiaries hold, and since January 1, 2020 have held, all Governmental Authorizations, and have made all filings required under Applicable Laws, necessary to enable Parent and its Subsidiaries to conduct their respective businesses in the manner in which such businesses are currently being conducted. Except as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect all such Governmental Authorizations are valid and in full force and effect or expired at a time when such Governmental Authorizations no longer were required. Except as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect, Parent and its Subsidiaries are and have always been in compliance in with the terms and requirements of such Governmental Authorizations. Since January 1, 2020, neither


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Parent nor its Subsidiaries have received any written notice or, to the Knowledge of Parent, other communication from any Governmental Authority regarding (i) any actual or possible violation of or failure to comply with any term or requirement of any Governmental Authorization or (ii) any actual or possible revocation, withdrawal, suspension, cancellation, termination or modification of any material Governmental Authorization, except, in each case of (i) and (ii) as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect.

1.7Tax Matters.

(y)Except as would not be material and adverse to Parent and its Subsidiaries taken as a whole: (i) each of the Tax Returns filed, or required to be filed, by or on behalf of Parent or any of its Subsidiaries with any Governmental Authority with respect to any taxable period ending on or before the Closing Date (A) has been or will be filed on or before the applicable due date (taking into account any available extensions of such due date) and (B) has been, or will be when filed, accurate and complete and in compliance with all Applicable Laws; (ii) each of Parent and its Subsidiaries has timely paid all Taxes required to be paid by it; (iii) each of Parent and its Subsidiaries has withheld from each payment or deemed payment made to any Parent Associate or to its past or present suppliers, creditors, stockholders or other third parties all Taxes and other deductions required to be withheld and has, within the time and in the manner required by Applicable Law, paid such withheld amounts to the proper Governmental Authority and complied with all related reporting and record retention requirements; and (iv) there are no Encumbrances for Taxes upon any of the assets of any of Parent and its Subsidiaries except for Permitted Encumbrances.

(f)There is no currently effective agreement extending or waiving the period of assessment or collection for any material Tax.

(g)No audit, claim or Legal Proceeding with respect to material Taxes or Tax Returns of Parent or any of its Subsidiaries is pending or, to the Knowledge of Parent, has been threatened against or with respect to Parent or any of its Subsidiaries in respect of any Tax, and no deficiency for any material amount of Tax has been asserted or assessed by a Governmental Authority against Parent or any of its Subsidiaries that has not been completely settled, paid or withdrawn.

(h)No claim has ever been made by any Governmental Authority in a jurisdiction where Parent or any of its Subsidiaries does not file a Tax Return that it is or may be subject to taxation by that jurisdiction.

(i)Neither Parent nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” within the meaning of Section 355(a)(1)(A) of the Code in connection with a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

(j)In the five (5) years prior to the date hereof, neither Parent nor any of its Subsidiaries (i) has been a member of an “affiliated group” as defined in Section 1504(a) of the Code (or similar state, local or foreign filing group) other than a group consisting solely of the Parent and one or more of its Subsidiaries, or (ii) has any material Liability for the Taxes of any Person other than Parent or any of its Subsidiaries under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Applicable Law, including any arrangement for group or consortium relief or similar arrangement), or as a transferee or successor, or by Contract.


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(k)Neither Parent nor any of its Subsidiaries is, or has ever been, a party to or bound by any Tax indemnity agreement, Tax sharing agreement, Tax allocation agreement or similar Contract (except for an agreement solely between two or more of Parent or any of its Subsidiaries or entered into in the ordinary course of business and not primarily related to the allocation or sharing of Taxes).

(l)Each of Parent and its Subsidiaries has at all times complied in all material respects with Section 482 of the Code and any similar provision of state, local or foreign Tax Applicable Laws relating to transfer pricing (including the maintenance of contemporaneous documentation and the preparation of required transfer pricing reports).

(m)Neither Parent nor any of its Subsidiaries has participated in, or is currently participating in, a “listed transaction” or a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2) or a similar transaction under any corresponding or similar Applicable Law. Each of Parent and its Subsidiaries has disclosed on its U.S. federal income Tax Returns all positions taken therein that would give rise to a “substantial understatement” within the meaning of Section 6662 of the Code.

(n)Neither Parent nor any of its Subsidiaries will be required to include any material items of income in, or exclude any material items of deduction from, taxable income for a taxable period ending after the Closing as a result of: (i) any change in accounting method pursuant to Section 481 of the Code (or any comparable provision under state, local or foreign Tax Applicable Laws) as a result of transactions or events occurring, or accounting methods employed, prior to the Closing; (ii) deferred intercompany gain described in the Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local or foreign Tax Applicable Laws) arising from any transaction that occurred prior to the Closing; (iii) any installment sale or open transaction that occurred prior to the Closing; (iv) any prepaid amount received prior to the Closing; or (v) any election under Section 108(i) or Section 965(h) of the Code made prior to the Closing.

(o)Neither Parent nor any of its Subsidiaries has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

1.28Employee and Labor Matters; Benefit Plans.

(a)Neither Parent nor any of its Subsidiaries is or has been a party to, subject to, or under any obligation to bargain for, any Collective Bargaining Agreement, and there are no labor organizations representing, purporting to represent or, to the Knowledge of Parent, seeking to represent any employee or Contract Worker of Parent or any of its Subsidiaries. There are no organizing, election, certification petitions, campaigns, or other activities pending or, to the Knowledge of Parent, threatened by or on behalf of any Union with respect to any Parent Associate. No Union holds bargaining rights with respect to any Parent Associate by way of certification, interim certification, voluntary recognition or succession rights, or has applied or, to the Knowledge of Parent, threatened to apply to be certified as the bargaining agent of any Parent Associate. Neither Parent nor any of its Subsidiaries has agreed to recognize any Union, nor has any Union been certified as the exclusive bargaining representative of any Parent Associate. Neither Parent nor any of its Subsidiaries is or has been the subject of a slowdown, strike, picketing, boycott, group work stoppage, labor dispute, attempt to organize or Union organizing activity, or any similar activity or dispute, affecting Parent, any of its Subsidiaries or any of their respective employees.

(b)Except as would not have a material and adverse effect on Parent and its Subsidiaries taken as a whole, each Parent Associate that currently renders or has rendered


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services to Parent or any of its Subsidiaries that is classified as a Contract Worker or other non-employee status or as an exempt or non-exempt employee, is properly characterized as such for all purposes, including: (i) for purposes of the Fair Labor Standards Act and similar applicable state, local, provincial and foreign Applicable Laws governing the payment of wages (including overtime and premium wages); (ii) Tax Applicable Laws; and (iii) unemployment insurance and worker’s compensation obligations, and Parent and its Subsidiaries have properly classified and treated each such individual in accordance with Applicable Laws and for purposes of all applicable Parent Employee Plans and perquisites. No Contract Worker is eligible to participate in any Parent Employee Plan.

(c)Except as would not have a material and adverse effect on Parent taken as a whole, to the Knowledge of Parent, no Person has claimed or has reason to claim that any Parent Associate or other individual affiliated or associated with Parent or any of its Subsidiaries: (i) is in violation of any term of any employment Contract, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement, any other restrictive covenant with such Person; (ii) has disclosed or utilized any trade secret or proprietary information or documentation of such Person; or (iii) has interfered in the employment relationship between such Person and any of its present or former employees. Except as would not have a material and adverse effect on Parent taken as a whole, to the Knowledge of Parent, no Parent Associate has used or proposed to use any trade secret, information or documentation confidential or proprietary to any former employer or other Person for whom such individual performed services or violated any confidential relationship with any Person in connection with the development, marketing or sale of any product or proposed product, or the development or sale of any service or proposed service, of Parent or any of its Subsidiaries.

(d)Parent and its Subsidiaries are, and since January 1, 2020 have been, in compliance in all material respects with all Applicable Laws respecting labor and employment, including hiring practices, employment practices, terms and conditions of employment, wages, hours or other labor-related matters, including Applicable Laws relating to discrimination, equal pay, wages and hours, overtime, business expense reimbursements, labor relations, leaves of absence, paid sick leave laws, work breaks, classification of employees (including exempt and independent contractor status), occupational health and safety, immigration, privacy, fair credit reporting, harassment, retaliation, disability rights and benefits, reasonable accommodation, equal employment, fair employment practices, immigration, wrongful discharge or violation of personal rights including the Worker Adjustment and Retraining Notification Act (and any similar foreign, provincial, state or local statute or regulation) (the “WARN Act”). Since January 1, 2021, Parent and its Subsidiaries have not effectuated a “plant closing” or “mass layoff” as those terms are used in the WARN Act and similar laws or has become subject to any obligation under any Applicable Law or otherwise to notify or consult with, prior to or after the Effective Time, any Governmental Authority or other Person with respect to the impact of the Contemplated Transactions. Parent and its Subsidiaries have properly accrued in the ordinary course of business and in accordance with GAAP, and has timely made all payments for, all wages, overtime, salaries, commissions, bonuses, fees and other compensation, together with any related Taxes and any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority with respect to unemployment compensation benefits, worker’s compensation, social security or other benefits or obligations (other than routine payments to be made in the ordinary course of business), for any services performed, directly or indirectly, for Parent and its Subsidiaries.

(e)Parent and its Subsidiaries are, and since April 1, 2020 has been in compliance in all material respects with Applicable Laws regarding COVID-19 health and safety protocols. Parent and its Subsidiaries have also used commercially reasonable efforts to adhere to applicable guidance from applicable Governmental Authorities such as the U.S. Centers for


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Disease Control and Prevention and the federal Occupational Safety and Health Administration relating to COVID-19.

(f)Neither Parent, any of its Subsidiaries nor any of their respective directors or officers, nor any management level employees, is under administrative, civil or criminal (i) indictment or audit or (ii) to the Knowledge of Parent, investigation, in each case by any Governmental Authority relating to labor or employment matters at Parent or any of its Subsidiaries that reasonably would be expected to result in a notice of material violation, material finding of reasonable cause, or similar material adverse finding.

(g)Part 3.19(g) of the Parent Disclosure Schedule contains an accurate and complete list, as of the date of this Agreement, of each material Parent Employee Plan and each material Parent Employee Agreement. Neither Parent nor any of its Subsidiaries intends, and neither Parent nor any of its Subsidiaries has committed, to establish or enter into any new arrangement that would constitute a Parent Employee Plan or Parent Employee Agreement, or to materially modify any Parent Employee Plan or Parent Employee Agreement (except to conform any such Parent Employee Plan or Parent Employee Agreement to the requirements of any Applicable Laws, in each case as previously disclosed to the Company in writing or as required by this Agreement). Parent has Made Available to the Company, in each case, to the extent applicable: (i) accurate and complete copies of all documents setting forth the terms of each material Parent Employee Plan and each material Parent Employee Agreement, including all amendments thereto and all related trust documents; (ii) the most recent summary plan description, together with summaries of the material modifications thereto, if any, required under ERISA with respect to each material Parent Employee Plan; (iii) all trust agreements, insurance contracts and funding agreements, including all amendments thereto; (iv) all discrimination and compliance tests required under the Code for the most recent plan year; (v) the most recent IRS determination or opinion letter issued with respect to each Parent Employee Plan intended to be qualified under Section 401(a) of the Code; and (vi) all material, non-routine filings, notices, correspondence or other communications relating to any Parent Employee Plan that was submitted to or received from the IRS, the Pension Benefit Guaranty Corporation, the DOL, the SEC, or any other Governmental Authority since January 1, 2020.

(h)Each Parent Employee Plan has been established, maintained and operated in all material respects in accordance with its terms and in compliance in all material respects with all Applicable Laws, including ERISA and the Code. Any Parent Employee Plan intended to be qualified under Section 401(a) of the Code and each trust intended to be qualified under Section 501(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, to the Knowledge of Parent, nothing has occurred since the date of the most recent determination that would reasonably be expected to adversely affect such qualification. Each other Parent Employee Plan intended to be tax qualified under Applicable Laws is so tax qualified, and no event has occurred and no circumstance or condition exists that could reasonably be expected to result in the disqualification of any such Parent Employee Plan. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Parent Employee Plan. Each Parent Employee Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, without material Liability to the Acquired Companies, Parent or any Company ERISA Affiliates or any Parent ERISA Affiliates (other than ordinary administration expenses). There is no audit, inquiry or Legal Proceeding pending or, to the Knowledge of Parent, threatened or reasonably anticipated by the IRS, DOL, PBGC or any other Person with respect to any Parent Employee Plan. Neither Parent nor any Parent ERISA Affiliate has ever incurred any material penalty or Tax with respect to any Parent Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980H of the Code or any material penalty or Tax under Applicable Laws. Parent and the Parent ERISA Affiliates have timely


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made all contributions and other payments required by and due under the terms of each Parent Employee Plan, except as would not result in material Liability and, to the extent not yet due, such contributions and other payments have been adequately accrued in accordance with GAAP in the consolidated financial statements (including any related notes) contained or incorporated by reference in the Parent SEC Reports. Neither Parent nor any Parent ERISA Affiliate sponsors, maintains, participates in, or contributes to, or has an obligation to contribute to or has any Liability with respect to any Foreign Plan.

(i)Neither Parent nor any of its Parent ERISA Affiliates has ever, maintained, established, sponsored, participated in, or contributed to, or been obligated to contribute to or has any Liability in respect of, any: (i) “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA or Section 412 of the Code; (ii) “multiemployer plan” within the meaning of Section (3)(37) of ERISA; (iii) plan described in Section 413 of the Code; or (iv) a “voluntary employee’s beneficiary association” within the meaning of Section 501(c)(9) of the Code. No material Liability under Title IV or Section 302 of ERISA (other than any Liability for premiums due to the PBGC (which premiums have been paid when due)) has been incurred by Parent or any Parent ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Parent or any Parent ERISA Affiliate of incurring any such Liability. No Parent Employee Plan subject to ERISA holds stock issued by Parent or any of its current Parent ERISA Affiliates as a plan asset.

(j)No Parent Employee Plan or Parent Employee Agreement provides (except at no cost to Parent or any Affiliate of Parent), or reflects or represents any Liability of any of Parent or any Affiliate of Parent to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other Applicable Laws at the recipient’s sole premium expense. No Parent Employee Plan provides or reflects or represents any Liability of Parent or any Affiliate of Parent to provide, life insurance, health benefits or other welfare benefits to any member of Parent’s Board of Directors for any reason, unless such director is also an employee of Parent or any of its Subsidiaries.

(k)Except as set forth in Part 3.19(k)-1 of the Parent Disclosure Schedule, and except as expressly required or provided by this Agreement, neither the execution of this Agreement nor the consummation of the Contemplated Transactions will (either alone or in combination with another event, whether contingent or otherwise): (i) result in any payment (whether of bonus, change in control, retention, severance pay or otherwise), acceleration, forgiveness of Indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Parent Associate; or (ii) create any limitation or restriction on the right of Parent or any of its Subsidiaries to merge, amend or terminate any Parent Employee Plan or Parent Employee Agreement. Without limiting the generality of the foregoing, except as set forth on Part 3.19(k)-2 of the Parent Disclosure Schedule, no amount payable to any Parent Associate as a result of the execution and delivery of this Agreement or the consummation of any of the Contemplated Transactions (either alone or in combination with any other event) would be an “excess parachute payment” within the meaning of Section 280G or would be nondeductible under Section 280G of the Code. Neither Parent nor any of its Subsidiaries has any obligation to compensate any Parent Associate for any Taxes incurred by such Parent Associate under Section 4999 of the Code.

(l)Each Parent Employee Plan, Parent Employee Agreement or other Contract between Parent and any Parent Associate that is subject to U.S. law has been maintained and operated in documentary and operational compliance with Section 409A of the Code or an available exemption therefrom. Neither Parent nor any of its Subsidiaries is a party to or has any Liability under any Employee Plan, Parent Employee Agreement or other Contract to


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compensate any person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A or 457A of the Code.

1.29Environmental Matters.

(a)Except as would not have, and would not reasonably be expected to have a Parent Material Adverse Effect, and except as set forth on Part 3.20(a) of the Parent Disclosure Schedule, each Parent is, and since January 1, 2020 has been, in compliance in all material respects with, and is not subject to any material Liability under, any applicable Environmental Law, which compliance includes timely applying for, possessing, maintaining, and complying with the terms and conditions of all Environmental Authorizations.

(b)The Parent has Made Available to the Company a true and complete list of any Environmental Authorization held by Parent. No notice or consent is required for any such Environmental Authorization to remain in full force and effect following consummation of the Contemplated Transactions, except as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect.

(c)Except as would not have, and would not reasonably be expected to have a Parent Material Adverse Effect, (i) there has been no Release of Hazardous Substances at any real property currently or formerly owned, operated or leased Parent, and (ii) Parent has not arranged, by contract, agreement or otherwise, for the transportation, treatment or disposal of Hazardous Substances at any location.

(d)There are no Legal Proceedings pending, or, to the Knowledge of the Parent, threatened against Parent, and since January 1, 2020, or earlier for matters that remain unresolved, Parent has not received any written notice, request for information from a Governmental Authority, demand, letter, citation, summons, complaint, penalty or claim that alleges that Parent is not in material compliance with, any Environmental Law, except in each case as would not have, and would not reasonably be expected to have, a Parent Material Adverse Effect.

(e)Parent has Made Available to the Company copies of all material assessments, reports, audits and all material documents in their possession or under their control that relate to Parent’s compliance with or any Liability under any Environmental Law or the environmental condition of any real property that Parent currently owns, operates or leases or formerly has owned, operated, or leased.

1.30Vote Required. The approval of the Parent Common Stock Issuance by a majority of the outstanding shares of Parent Common Stock present in person or by proxy at the Parent Stockholders’ Meeting and entitled to vote on the proposal to approve the Parent Common Stock Issuance (the “Required Parent Stockholder Vote”) is the only vote of the holders of any class or series of the Parent’s capital stock necessary to adopt, approve or authorize this Agreement and approve or authorize the Merger.

1.31Fairness Opinion. Parent’s board of directors has received the written opinion of Centerview Partners, financial advisor to Parent, dated August 9, 2022, to the effect that the Exchange Ratio is fair, from a financial point of view, to Parent. Parent has furnished an accurate and complete copy of such written opinion to the Company, and Parent has received the consent of Centerview Partners to include such opinion in the Joint Proxy Statement.

1.32Advisors’ Fees. Except for Centerview Partners and J.V.B. Financial Group, LLC, acting through its Cohen & Company Capital Markets division (“CCM”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or


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commission in connection with the Merger or any of the other Contemplated Transactions based upon arrangements made by or on behalf of Parent or any of its Subsidiaries. Parent has furnished to the Company accurate and complete copies of all agreements under which any such fees, commissions or other amounts have been paid or may become payable and all indemnification and other agreements related to the engagement of Centerview Partners and CCM.

1.33Disclosure. None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC, and at any time it is amended or supplemented or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or (ii) the Joint Proxy Statement will, at the date it is first mailed to the Parent’s stockholders or at the time of the Parent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4 and the Joint Proxy Statement shall comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder.

1.34No Ownership of Company Common Stock. . Neither Parent nor any of its Subsidiaries beneficially owns, directly or indirectly, any shares of Company Common Stock or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock, and neither Parent nor any of its Subsidiaries has any rights to acquire any shares of Company Common Stock (other than any such securities owned by Parent or any of its Subsidiaries in a fiduciary, representative or other capacity on behalf of other Persons, whether or not held in a separate account). There are no voting trusts or other agreements or understandings to which Parent or any of its Subsidiaries is a party with respect to the voting of the capital stock or other Equity Securities of the Company or any of its Subsidiaries.

1.35No Additional Representations; No Outside Reliance.

(m)Except for the representations and warranties contained in this Section 3, or any certificate delivered by or on behalf of Parent pursuant to Section 7 of this Agreement, neither the Parent nor any of its Subsidiaries, nor any other Person makes or shall be deemed to make any representations or warranties to the Company, express or implied, at law or in equity, by or on behalf of Parent with respect to Parent (or their respective business, assets, liabilities, condition, operations or results of operations) or the transactions contemplated by this Agreement, and Parent hereby disclaims any such representations or warranties with respect to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

(n)Notwithstanding anything contained in this Section 3 or any other provision hereof, the Parent acknowledges and agrees that none of Acquired Companies or any of their respective Affiliates nor any other Person has made, or is making, any representation or warranty whatsoever, oral or written, express or implied (and none of Parent or its Affiliates or their respective directors, officers, employees, equityholders, partners, members, agents or representatives has relied on any representation, warranty or statement of any kind by the Company), except for those expressly given in Section 2 or in any certificate delivered by or on behalf of the Company under Section 6, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other


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predictions that may be contained or referred to in the schedules or elsewhere, as well as any information, documents or other materials or management presentations or due diligence discussions that have been or shall hereafter be provided to or engaged in with Parent or any of its Affiliates or any of their respective directors, officers, employees, equityholders, partners, members, agents or representatives are not and will not be deemed to be representations or warranties of the Company or any of its Affiliates or any other Person, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Section 2 or in any certificate delivered by or on behalf of the Company under Section 6. Except as otherwise expressly set forth in this Agreement, the Parent understands and agrees that any inventory, equipment, vehicles, assets, properties and business of the Company and its Subsidiaries are furnished “as is”, “where is” and, subject only to the representations and warranties contained in Section 2 or in any certificate delivered by or on behalf of the Company under this Agreement with all faults and without any other representation or warranty of any nature whatsoever. The provisions of this Section 3.26(b) shall not, and shall not be deemed or construed to, waive or release any claims for fraud.

Section 4.Covenants

1.11Access and Investigation.

(a)During the period commencing on the date of this Agreement and ending the earlier of the Effective Time and the termination of this Agreement pursuant to the terms of Section 8.1 (the “Pre-Closing Period”), the Company and Parent each shall, and shall ensure that each of their respective Subsidiaries and its and their respective Representatives: (i) provide the other Party and its Representatives with reasonable access to its and its Subsidiaries’ Representatives, personnel, properties, facilities and assets and to all existing books, records, Tax Returns, Contracts, permits, work papers and other documents and information, in each case upon reasonable advance notice, during normal business hours, in accordance with reasonable procedures established by Parent and the Company and in a manner that does not unreasonably interfere with the normal operation of the business of the Acquired Companies or Parent and its Subsidiaries, as the case may be; provided that, with respect to the Company, the access to be granted to it under this clause (i) shall be limited to what is reasonably required by the Company for purposes of enforcing its rights and claims under this Agreement; (ii) instruct its and its Subsidiaries’ employees, counsel, accountants and other Representatives, in each case, as appropriate or relevant to reasonably cooperate with Parent or the Company, as the case may be, in good faith in connection with the foregoing; and (iii) maintain in operation the electronic data room made available by the Company to Parent or by Parent to the Company, as the case may be, in connection with the Contemplated Transactions and continue to provide the other Party and its Representatives with access through such electronic data room to all information contained therein as of the date of this Agreement to the same extent provided prior to the date hereof.

(b)Notwithstanding anything in clause (a) of this Section 4.1, no Party shall be required to afford access or furnish information to the extent that such information is subject to an attorney-client privilege or the attorney work product doctrine or that affording such access or furnishing such information would, in the opinion of such Party’s outside counsel, violate Applicable Laws or an existing Contract.

(c)All information furnished by either Party under clause (a) of this Section 4.1 shall be subject to the terms and provisions of the Confidentiality Agreement.


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1.8Operation of the Company’s Business.

(d)During the Pre-Closing Period, except (w) as may be required by Applicable Laws, including COVID-19 Measures, (x) with the prior written consent of Parent which shall not be unreasonably withheld, conditioned or delayed; (y) as expressly required by this Agreement or (z) as set forth in Part 4.2 of the Company Disclosure Schedule: (i) the Company shall conduct, and shall ensure that each of the other Acquired Companies conducts, its business and operations in the ordinary course and (ii) the Company shall use reasonable best efforts to ensure that each of the Acquired Companies preserves intact its current business organization, keeps available the services of its current officers and other employees and other key service providers and maintains its relations and goodwill with all suppliers, customers, distributors, employees and other Persons having material business relationships with such Acquired Company and maintain its material rights and material Permits.

(e)During the Pre-Closing Period, except (w) as may be required by Applicable Laws, including COVID-19 Measures, (x) with the prior written consent of Parent which shall not be unreasonably withheld, conditioned or delayed; (y) as expressly required by this Agreement or (z) as set forth in Part 4.2 of the Company Disclosure Schedule, the Company shall not, and the Company shall ensure that the other Acquired Companies do not:

(i)repurchase, redeem or otherwise reacquire any shares of capital stock or other equity or voting securities or any other securities of any Acquired Company convertible into or exchangeable or exercisable for capital stock or other equity or voting interests or any options, restricted shares, warrants, calls or rights to acquire any such shares or other securities (including any Company Equity Awards, except pursuant to the forfeiture conditions of such Company Equity Awards or the cashless exercise or Tax withholding provisions of or authorizations related to such Company Equity Awards as in effect as of the date of this Agreement);

(ii)sell, issue, deliver, grant, pledge or subject to any Encumbrance or authorize the sale, issuance, delivery, grant, pledge or subjection to a Encumbrance of: (A) any capital stock or other security; (B) any option, stock appreciation right, restricted stock unit, deferred stock unit, market stock unit, performance stock unit, restricted stock award or other equity-based compensation award (whether payable in cash, stock or otherwise), call, warrant or right to acquire any capital stock or other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security (except that the Company may issue shares of Company Common Stock upon the valid exercise of, or the vesting or scheduled delivery of shares pursuant to, Company Equity Awards in accordance with their terms or pursuant to the exercise of any Company Warrants in accordance with their terms, in each case, outstanding as of the date of this Agreement);

(iii)amend or waive any of its rights under, or accelerate the vesting, payment or exercisability under, any provision of any of the Company Equity Plans or any provision of any Contract evidencing any Company Equity Award, or otherwise modify any of the terms of any outstanding Company Equity Award, warrant or other security or any related Contract;

(iv)amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect, approve or become a party to any liquidation, dissolution, merger, consolidation, conversion, share exchange, business combination, plan or scheme of arrangement, amalgamation, restructuring, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction;


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(v)declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock, property or otherwise) in respect of any shares of capital stock or other equity or voting interests, other than dividends by a direct or indirect wholly owned Subsidiary of the Company to its parent.

(vi)acquire or agree to acquire, in a single transaction or a series of related transactions, (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the equity or voting interest in, or by any other manner, any business or Person or division thereof if the amount of consideration paid or transferred by the Acquired Companies would exceed $1,000,000 in the aggregate and (B) any other assets other than in the ordinary course of business;

(vii)sell, lease, license, sell and lease back, mortgage or subject to any Encumbrance or otherwise dispose of any of its material properties or any portion thereof (including Owned Real Property) or any material assets (including any shares of capital stock, equity or voting interests or other rights, instruments or securities), except (A) sales of inventory or used equipment in the ordinary course of business, (B) Permitted Encumbrances and (C) single transactions or series of related transactions involving assets or properties (excluding Owned Real Property or shares of capital stock, equity or voting interests or other rights, instruments or securities) where the fair market value of such assets and the consideration due to the Acquired Companies is less than $1,000,000, and (D) as set forth in clause (ii) above with respect to shares of capital stock, equity or voting interests or other rights, instruments or securities;

(viii)make any capital expenditures or incur any obligations or Liabilities in respect thereof in excess of $1,000,000 in the aggregate;

(ix)other than in the ordinary course of business, (A) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Contract that would be a Material Contract if it had been entered into immediately prior to the date of this Agreement (other than any Contract entered into for the purpose of refinancing, replacing, amending or amending and restating, the Company Floorplan Agreement); (B) renew, extend, amend, or waive or exercise any material right or remedy under, any Material Contract, which renewal, extension, amendment, waiver or exercise would not have a material and adverse impact on the Acquired Companies taken as a whole, (C) accelerate, cancel or terminate any Material Contract, except for allowing any such Material Contract to expire in accordance with its terms or, solely with respect to the Company Floorplan Agreement, to be cancelled or terminated as a result of a refinancing or a replacement of the Company Floorplan Agreement; or (D) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Contract that pursuant to its terms provides for payment of, or would reasonably be expected to result in payment of, an amount in excess of $250,000 in the aggregate (other than any Contract entered into for the purpose of refinancing, replacement, amending or amending and restating, the Company Floorplan Agreement);

(x)enter into any material lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee), or modify or amend in any material respect, or exercise any right to renew, any material Lease or acquire any material interest in real property, in each case, other than in the ordinary course of business;

(xi)make any pledge of any of its material assets or permit any of its material assets to become subject to any Encumbrance, except in the ordinary course of business and for Permitted Encumbrances and for Encumbrances that do not, individually or in the aggregate, materially and adversely affect the value or use of such property for its current and anticipated purposes;


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(xii)(A) lend, advance money or make capital contributions to or investments in any Person other than any Acquired Company or (B) incur, assume, modify in any material respect, prepay, repurchase, redeem, defease or assume any amount of Indebtedness, enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than (1) the incurrence of Indebtedness under the Company Floorplan Agreement then as in effect on the date of this Agreement in the ordinary course of business, (2) the incurrence of Indebtedness under any refinancing, replacement, amendment or amendment and restatement of the Company Floorplan Agreement; and (3) in the case of each of clauses (A) and (B), extensions of trade credit in the ordinary course of business;

(xiii)except as required by the terms of a Company Employee Plan as in effect on the date of this Agreement or established, adopted, entered into or amended after the date of this Agreement in accordance with clause (B) below, as required to ensure that any Company Employee Plan as in effect on the date of this Agreement is not then out of compliance with Applicable Laws, or as specifically required pursuant to this Agreement, (A) enter into or amend any Collective Bargaining Agreement; (B) establish, adopt, enter into, amend or terminate any Company Employee Plan or Company Employee Agreement or any plan, practice, agreement, arrangement or policy that would be a Company Employee Plan or Company Employee Agreement if it was in existence on the date of this Agreement (other than (1) in the ordinary course of business in connection with the annual renewal of Company Employee Plans that are group health or welfare plans or (2) the entry into employment agreements that are terminable “at will” without any obligation on the part of any Acquired Company or any Affiliate of any Acquired Company to make any severance, change in control, incentive compensation or similar payment or provide any benefit in the ordinary course of business in connection with the hiring or promotion of any Company Associate permitted by clause (H)); (C) pay, or make any new commitment to pay, any bonus, cash incentive payment or profit-sharing or similar payment to, or increase or make any commitment to increase the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any Company Associate; provided that the Acquired Companies may make increases to base salary and target bonus opportunity in connection with such promotions in an aggregate amount for such increases of up to $200,000; (D) grant, pay or establish any severance, separation, change in control, termination, retention or similar compensation or benefits to, or increase in any manner the severance, separation, change in control, termination, retention or similar compensation or benefits of, any Company Associate other than the entry into separation agreements, and payments of termination or separation pay pursuant thereto, in the ordinary course of business consistent with past practice in connection with the termination of employment of any Company Associate permitted pursuant to clause (I) and provided that (x) such Company Associate is not a participant in the Retention Pool (as defined in the Company Disclosure Schedule) and (y) such separation agreements and payments are on terms consistent with (and provide rights and benefits that are no greater than) the Company’s severance policy in effect on the date of this Agreement as described on Part 4.2(b)(xiii) of the Company Disclosure Schedule; (E) enter into any trust, annuity or insurance Contract or similar agreement or take any other action to fund or in any other way secure the payment of compensation or benefits under any Company Employee Plan; (F) take any action to accelerate the time of payment or vesting of any compensation, benefits or funding obligations under any Company Employee Plan or otherwise; (G) make any material determination under any Company Employee Plan that is inconsistent with the ordinary course of business or past practice; (H) hire any individual who is a senior director or above or promote any Company Associate to a senior director role or above (1) that is a newly created position following the date of this Agreement or (2) other than in replacement of a position as of the date of this Agreement, provided that such replacement shall not receive compensation and/or benefits in excess of the compensation and/or benefits provided to the person who held such position as of the date of this Agreement; (I) terminate any Company Associate who is a senior director or above (other than a termination for “cause” as defined under any Company Employee


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Plan as of the date of this Agreement); (J) effectuate a “plant closing,” “mass layoff,” or similar action under the WARN Act; or (K) enter into any new Contract covering any Company Associate that, considered individually or collectively with any other such Contracts or payments, will or reasonably would be expected to be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code;

(xiv)(A) adopt any method or make any Tax election (or allow any Tax election previously made to expire) that is inconsistent with any of the positions taken, elections made or methods used in preparing or filing Tax Returns with respect to periods ending prior to the Closing (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date); (B) prepare or file any Tax Return or amended Tax Return inconsistent with past practices; (C) settle or otherwise compromise any claim, dispute, notice, audit report or assessment relating to Taxes, or enter into, cancel or modify any closing agreement or similar agreement relating to Taxes; (D) request any ruling, closing agreement or similar guidance with respect to Taxes; (E) incur any Liability for Taxes other than in the ordinary course of business; (F) extend or waive the period of assessment or collection for any material Taxes; (G) enter into any material agreement or arrangement the primary purpose of which relates to Taxes; or (H) fail to deduct or withhold from any payment or deemed payment any material Taxes required to be deducted or withheld, or fail to timely pay any such deducted or withheld amounts to the proper Governmental Authority;

(xv)commence or settle any Legal Proceeding, except in the ordinary course of business;

(xvi)enter into any new line of business outside of the businesses of the Acquired Companies as of the date of this Agreement;

(xvii)approve or adopt any stockholder rights plan or “poison pill” arrangement;

(xviii)cancel or terminate or allow to lapse without a commercially reasonable substitute policy therefor, or amend in any material respect or enter into, any material insurance policy, other than the renewal of existing insurance policies or entering into comparable substitute policies therefor or entering into insurance policies in the ordinary course of business;

(xix)notwithstanding anything to the contrary contained in any organizational or governing documents of any Acquired Company (including Article IX of the Company’s Second Amended and Restated Certificate of Incorporation filed on January 21, 2021), consent to the selection of any forum other than the Court of Chancery of the State of Delaware or take any other actions to waive the exclusive forum of the Court of Chancery of the State of Delaware, in each case, with respect to all matters related to this Agreement, the Merger and the other Contemplated Transactions;

(xx)abandon or permit to lapse any material Intellectual Property of the Company or its Subsidiaries, except in the ordinary course of business;

(xxi)enter into, become bound by, renew, extend or amend any agreements under which any fees, commissions or other amounts have been paid or may become payable and all indemnification and other agreements related to the engagement of Blair; or

(xxii)authorize, approve, agree, commit or offer to take any of the actions described in clauses (i) through (xxi) of this Section 4.2(b).


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1.1Operation of Parent’s Business.

(a)During the Pre-Closing Period, except (w) as may be required by Applicable Laws, including COVID-19 Measures, (x) with the prior written consent of the Company which shall not be unreasonably withheld, conditioned or delayed; (y) as expressly required by this Agreement or (z) as set forth in Part 4.3 of the Parent Disclosure Schedule, Parent shall conduct, and shall ensure that each of its Subsidiaries conducts, its business and operations in the ordinary course and (ii) Parent shall use reasonable best efforts to ensure that each of its Subsidiaries preserves intact its current business organization, keeps available the services of its current officers and other employees and other key service providers and maintains its relations and goodwill with all suppliers, customers, distributors, employees and other Persons having material business relationships with such Subsidiary and maintain its material rights and material Permits.

(b)During the Pre-Closing Period, except (w) as may be required by Applicable Laws, including COVID-19 Measures, (x) with the prior written consent of the Company which shall not be unreasonably withheld, conditioned or delayed; (y) as expressly required by this Agreement or (z) as set forth in Part 4.3 of the Parent Disclosure Schedule, Parent shall not, and Parent shall ensure that its Subsidiaries do not:

(i)repurchase, redeem or otherwise reacquire any shares of capital stock or other equity or voting securities or any other securities of Parent convertible into or exchangeable or exercisable for capital stock or other equity or voting interests or any options, restricted shares, warrants, calls or rights to acquire any such shares or other securities (including any Parent Equity Awards, except pursuant to the forfeiture conditions of such Parent Equity Awards or the cashless exercise or Tax withholding provisions of or authorizations related to such Parent Equity Awards as in effect as of the date of this Agreement);

(ii)sell, issue, deliver, grant, pledge or subject to any Encumbrance or authorize the sale, issuance, delivery, grant, pledge or subjection to a Encumbrance of: (A) any capital stock or other security; (B) any option, stock appreciation right, restricted stock unit, deferred stock unit, market stock unit, performance stock unit, restricted stock award or other equity-based compensation award (whether payable in cash, stock or otherwise), call, warrant or right to acquire any capital stock or other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security (except that Parent may issue shares of Parent Common Stock upon the valid exercise of, or the vesting or scheduled delivery of shares pursuant to, Parent Equity Awards in accordance with their terms, in each case, outstanding as of the date of this Agreement);

(iii)amend or waive any of its rights under, or accelerate the vesting, payment or exercisability under, any provision of any of the Parent Equity Plans or any provision of any Contract evidencing any Parent Equity Award, or otherwise modify any of the terms of any outstanding Parent Equity Award, warrant or other security or any related Contract;

(v)declare, accrue, set aside or pay any dividend or make any other distribution (whether in cash, stock, property or otherwise) in respect of any shares of capital


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stock or other equity or voting interests, other than dividends by a direct or indirect wholly owned Subsidiary of Parent to its parent.

(vi)acquire or agree to acquire, in a single transaction or a series of related transactions, (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the equity or voting interest in, or by any other manner, any business or Person or division thereof if the amount of consideration paid or transferred by Parent and its Subsidiaries would exceed $1,000,000 in the aggregate and (B) any other assets other than in the ordinary course of business;

(vii)sell, lease, license, sell and lease back, mortgage or subject to any Encumbrance or otherwise dispose of any of its material properties or any portion thereof (including Parent Owned Real Property) or any material assets (including any shares of capital stock, equity or voting interests or other rights, instruments or securities), except (A) sales of inventory or used equipment in the ordinary course of business, (B) Permitted Encumbrances, (C) single transactions or series of related transactions involving assets or properties (excluding Parent Owned Real Property or shares of capital stock, equity or voting interests or other rights, instruments or securities) where the fair market value of such assets and the consideration due to the Acquired Companies is less than $1,000,000, and (D) as set forth in clause (ii) above with respect to shares of capital stock, equity or voting interests or other rights, instruments or securities;

(viii)make any capital expenditures or incur any obligations or Liabilities in respect thereof in excess of $1,000,000 in the aggregate;

(ix)other than in the ordinary course of business, (A) enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Contract that would be a Parent Material Contract if it had been entered into immediately prior to the date of this Agreement; (B) renew, extend, amend, or waive or exercise any material right or remedy under, any Parent Material Contract, which renewal, extension, amendment, waiver or exercise would not have a material and adverse impact on Parent and its Subsidiaries taken as a whole, or (C) accelerate, cancel or terminate any Parent Material Contract, except for allowing any such Parent Material Contract to expire in accordance with its terms;

(xii)(A) lend, advance money or make capital contributions to or investments in any Person other than any Subsidiary of Parent or (B) incur, assume, modify in any material respect, prepay, repurchase, redeem, defease or assume any amount of Indebtedness, enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another person or enter into any arrangement having the economic effect of any of the foregoing, other than (1) the incurrence of Indebtedness under the Parent Floorplan Agreement as then in effect on the date of this Agreement in the ordinary course of business, (2) the incurrence of Indebtedness under any refinancing, amendment or amendment and restatement


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of the Parent Floorplan Agreement, and (3) in the case of each of clauses (A) and (B), extensions of trade credit in the ordinary course of business;

(xiii)(A) adopt any method or make any Tax election (or allow any Tax election previously made to expire) that is inconsistent with any of the positions taken, elections made or methods used in preparing or filing Tax Returns with respect to periods ending prior to the Closing (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date); (B) prepare or file any Tax Return or amended Tax Return inconsistent with past practices; (C) settle or otherwise compromise any claim, dispute, notice, audit report or assessment relating to Taxes, or enter into, cancel or modify any closing agreement or similar agreement relating to Taxes; (D) request any ruling, closing agreement or similar guidance with respect to Taxes; (E) incur any Liability for Taxes other than in the ordinary course of business; (F) extend or waive the period of assessment or collection for any material Taxes; (G) enter into any material agreement or arrangement the primary purpose of which relates to Taxes; or (H) fail to deduct or withhold from any payment or deemed payment any material Taxes required to be deducted or withheld, or fail to timely pay any such deducted or withheld amounts to the proper Governmental Authority;

(xiv)commence or settle any Legal Proceeding, except in the ordinary course of business;

(xv)enter into any new line of business outside of the businesses of Parent and its Subsidiaries as of the date of this Agreement;

(xvi)approve or adopt any stockholder rights plan or “poison pill” arrangement;

(xvii)cancel or terminate or allow to lapse without a commercially reasonable substitute policy therefor, or amend in any material respect or enter into, any material insurance policy, other than the renewal of existing insurance policies or entering into comparable substitute policies therefor or entering into insurance policies in the ordinary course of business;

(xviii)notwithstanding anything to the contrary contained in the governing documents of the Parent, consent to the selection of any forum other than the Court of Chancery of the State of Delaware or take any other actions to waive the exclusive forum of the Court of Chancery of the State of Delaware, in each case, with respect to all matters related to this Agreement, the Merger and the other Contemplated Transactions;

(xix)abandon or permit to lapse any material Intellectual Property of Parent or its Subsidiaries, except in the ordinary course of business;

(xx)enter into, become bound by, renew, extend or amend any agreements under which any fees, commissions or other amounts have been paid or may become payable and all indemnification and other agreements related to the engagement of Centerview Partners; or

(xxi)authorize, approve, agree, commit or offer to take any of the actions described in clauses (i) through (xx) of this Section 4.3(b).

(f)Nothing set forth in Section 4.2 or this Section 4.3 of this Agreement shall give (i) Parent or Merger Sub, directly or indirectly, the right to control or direct the operations


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of the Acquired Companies prior to the Closing, or (ii) the Company, directly or indirectly, the right to control or direct the operations of Parent or its Subsidiaries prior to the Closing.

1.2Company No Solicitation.

(c)The Company shall not directly or indirectly, shall ensure that the other Acquired Companies do not, and use reasonable best efforts to ensure that the Company’s and the other Acquired Companies’ respective Representatives do not directly or indirectly: (i) solicit, initiate, knowingly encourage, assist, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (including by approving any transaction, or approving any Person (other than Parent and its Affiliates) becoming an “interested stockholder” for purposes of Section 203 of the DGCL) or take any action that reasonably would be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish or otherwise provide access to any non-public information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) enter into, continue or otherwise engage in discussions or negotiations with, or cooperate with, any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to state the terms of this provision prohibit such discussions); (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or any Contract constituting or relating directly or indirectly to, or that contemplates or is intended or reasonably would be expected to result directly or indirectly in, an Acquisition Transaction.

(d)Notwithstanding anything to the contrary contained in Section 4.4(a) prior to the adoption of this Agreement by the Required Company Stockholder Vote, the Company may furnish non-public information regarding the Acquired Companies to, may enter into discussions or negotiations with and may make contact in order to ascertain facts or clarify terms with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to the Company after the date of this Agreement by such Person (and not withdrawn), in each case if: (i) none of the Acquired Companies or any of their respective Representatives shall have breached any of the provisions set forth in this Section 4.4 or in Section 5.2 in relation to such Acquisition Proposal or Acquisition Inquiry; (ii) the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and the Company’s outside legal counsel, that such Acquisition Proposal constitutes or reasonably could be expected to result in a Company Superior Offer; (iii) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that the failure to take such action could reasonably be expected to be inconsistent with Applicable Law; (iv) prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, the Company receives from such Person an executed confidentiality agreement containing confidentiality and use provisions consistent with the obligations of the Company under this Agreement and no less favorable in the aggregate to the Company than such provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (v) prior to, or concurrently with, furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been furnished previously by the Company to Parent).

(e)If the Company, any other Acquired Company or any Representative of the Company or any other Acquired Company receives an Acquisition Proposal, an Acquisition Inquiry or any request for non-public information at any time during the Pre-Closing Period, then the Company shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request): (i) advise Parent in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request and the material terms


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and conditions thereof); and (ii) provide Parent with copies of all documents and communications received by any Acquired Company or any Representative of any Acquired Company setting forth the terms and conditions of, or otherwise relating to, such Acquisition Proposal, Acquisition Inquiry or request. The Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto, and shall promptly (and in no event later than twenty-four (24) hours after transmittal or receipt of any correspondence or communication) provide Parent with a copy of any correspondence or communication between or otherwise involving (1) any Acquired Company or any Representative of any Acquired Company and (2) the Person that made or submitted such Acquisition Proposal, Acquisition Inquiry or request or any Representative of such Person. For the avoidance of doubt, the Company may not furnish non-public information regarding the Acquired Companies to, and may not enter into discussions or negotiations with, any Person (other than Parent and its Representatives) regarding any Acquisition Proposal, Acquisition Inquiry or request after the adoption of this Agreement by the Required Company Stockholder Vote.

(f)The Company shall, and shall ensure that each of the other Acquired Companies and shall use reasonable best efforts to cause its and their respective Representatives, immediately cease and cause to be terminated any existing solicitation, encouragement, inducement or facilitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.

(g)Promptly after the date of this Agreement and in any event within two (2) Business Days, the Company shall (i) request, and use commercially reasonable efforts to cause, each Person that has executed a confidentiality or similar agreement in connection with such Person’s consideration of a possible Acquisition Proposal or investment in any Acquired Company to return or destroy all confidential information previously furnished to such Person within twenty-four (24) months prior to the date of this Agreement by or on behalf of any of the Acquired Companies or any Representative of an Acquired Company and (ii) prohibit any third party from having access to any physical or electronic data room relating to any possible Acquisition Proposal or Acquisition Inquiry.

(h)The Company acknowledges and agrees that if it (i) authorizes any of its or the Acquired Companies’ Representatives to take any action or (ii) is made aware of an action by one or more of its or the Acquired Companies’ Representatives and does not use its reasonable best efforts to prohibit or terminate such action, then in either case, such action would constitute a breach this Section 4.4.

1.3Parent No Solicitation.

(p)Prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, Parent shall not directly or indirectly, shall ensure that its Subsidiaries do not, and use reasonable best efforts to ensure that Parent’s and its Subsidiaries’ respective Representatives do not directly or indirectly: (i) solicit, initiate, knowingly encourage, assist, induce or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (including by approving any transaction, or approving any Person (other than the Company and its Affiliates) becoming an “interested stockholder” for purposes of Section 203 of the DGCL) or take any action that reasonably would be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish or otherwise provide access to any non-public information regarding Parent or any of its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) enter into, continue or otherwise engage in discussions or negotiations with, or cooperate with, any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to state the terms of this provision prohibit such discussions); (iv) approve, endorse or recommend


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any Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or any Contract constituting or relating directly or indirectly to, or that contemplates or is intended or reasonably would be expected to result directly or indirectly in, an Acquisition Transaction.

(q)Notwithstanding anything to the contrary contained in Section 4.5(a) prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, Parent may furnish non-public information regarding Parent and its Subsidiaries to, may enter into discussions or negotiations with and may make contact in order to ascertain facts or clarify terms with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to Parent after the date of this Agreement by such Person (and not withdrawn), in each case if: (i) neither Parent nor any of its Subsidiaries or any of their respective Representatives shall have breached any of the provisions set forth in this Section 4.5 or in Section 5.3 in relation to such Acquisition Proposal or Acquisition Inquiry; (ii) Parent’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and Parent’s outside legal counsel, that such Acquisition Proposal constitutes or reasonably could be expected to result in a Parent Superior Offer; (iii) Parent’s board of directors determines in good faith, after having taken into account the advice of Parent’s outside legal counsel, that the failure to take such action could reasonably be expected to be inconsistent with Applicable Law; (iv) prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, Parent receives from such Person an executed confidentiality agreement containing confidentiality and use provisions consistent with the obligations of Parent under this Agreement and no less favorable in the aggregate to Parent than such provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement; and (v) prior to, or concurrently with, furnishing any non-public information to such Person, Parent furnishes such non-public information to the Company (to the extent such non-public information has not been furnished previously by Parent to the Company).

(r)If Parent, any Subsidiary of Parent or any Representative of Parent or any of its Subsidiaries receives an Acquisition Proposal, an Acquisition Inquiry or any request for non-public information at any time prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, then Parent shall promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request): (i) advise the Company in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request and the material terms and conditions thereof); and (ii) provide the Company with copies of all documents and communications received by Parent or any of its Subsidiaries or any Representative of Parent or any of its Subsidiaries setting forth the terms and conditions of, or otherwise relating to, such Acquisition Proposal, Acquisition Inquiry or request. Parent shall keep the Company reasonably informed with respect to the status of any such Acquisition Proposal, Acquisition Inquiry or request and any modification or proposed modification thereto, and shall promptly (and in no event later than twenty-four (24) hours after transmittal or receipt of any correspondence or communication) provide the Company with a copy of any correspondence or communication between or otherwise involving (1) Parent or any of its Subsidiaries or any Representative of Parent or any of its Subsidiaries and (2) the Person that made or submitted such Acquisition Proposal, Acquisition Inquiry or request or any Representative of such Person.

(s)Parent shall, and shall ensure that each of its Subsidiaries and shall use reasonable best efforts to cause its and their respective Representatives, immediately cease and cause to be terminated any existing solicitation, encouragement, inducement or facilitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry.


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(t)Promptly after the date of this Agreement and in any event within two (2) Business Days, Parent shall (i) request, and use commercially reasonable efforts to cause, each Person that has executed a confidentiality or similar agreement in connection with such Person’s consideration of a possible Acquisition Proposal or investment in Parent or any of its Subsidiaries to return or destroy all confidential information previously furnished to such Person within twenty-four (24) months prior to the date of this Agreement by or on behalf of any of Parent or any of its Subsidiaries or any Representative of Parent or any of its Representatives and (ii) prohibit any third party from having access to any physical or electronic data room relating to any possible Acquisition Proposal or Acquisition Inquiry.

(u)Parent acknowledges and agrees that if it (i) authorizes any of its or the Acquired Companies’ Representatives to take any action or (ii) is made aware of an action by one or more of its or the Acquired Companies’ Representatives and does not use its reasonable best efforts to prohibit or terminate such action, then in either case, such action would constitute a breach of this Section 4.5.

Section 5.Additional Agreements

1.9Form S-4; Proxy Statement; Listing.

(a)As promptly as practicable following the date of this Agreement, Parent and the Company shall prepare the Form S-4, in which the Joint Proxy Statement shall be included as a prospectus, and Parent shall file the Form S-4 with the SEC. Each of the Company and Parent shall reasonably cooperate and provide the other party and its counsel a reasonable opportunity to review such document or response (including the proposed final version of such document or response) and consider in a commercially reasonable manner the comments of the other party or such other party’s Representatives in connection with any such document or response. Each of Parent and the Company shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing and to keep the Form S-4 effective for as long as necessary in order to consummate the transactions contemplated by this Agreement. Parent and the Company shall, as promptly as practicable after receipt thereof, provide the other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 or the Joint Proxy Statement received from the SEC. Parent and the Company shall cooperate and provide the other parties with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 or the Joint Proxy Statement, or any response to written or oral SEC comments, a reasonable period of time prior to filing or submitting such with the SEC and shall consider in a commercially reasonable manner the comments of the other party or such other party’s counsel or other representatives in connection with any such document or response. None of the Company, Parent or any of their respective Representatives shall agree to participate in any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect of the Form S-4 or the Joint Proxy Statement, unless it consults with the other party in advance and, to the extent permitted by the SEC, provides the other Party with a reasonable opportunity to participate to the extent practicable. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Form S-4 or the Joint Proxy Statement, or any response to written or oral SEC comments, shall be made without the approval of both Parent and the Company, which approval shall not be unreasonably withheld, conditioned or delayed; provided that, with respect to documents filed by a party that are incorporated by reference in the Form S-4 or the Joint Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations, or the combined entity; and provided, further, that this approval right shall not apply with respect to information relating to a Parent Recommendation Change or a Company Recommendation Change. The Company shall use reasonable best efforts to cause the Joint Proxy Statement to be


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mailed to the Company’s stockholders, and Parent shall use reasonable best efforts to cause the Joint Proxy Statement to be mailed to Parent’s stockholders, in each case as promptly as practicable after the Form S-4 is declared effective under the Securities Act. The Form S-4 and the Joint Proxy Statement shall comply as to form in all material respects with the Securities Act, the Exchange Act and the rules and regulations of the SEC adopted thereunder, as applicable. Each party shall advise the other parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, of the time when any supplement or amendment to the Form S-4 has been filed, of the issuance of any stop order with respect to the Form S-4 (and Parent shall use its reasonable best efforts to have any such stop order lifted, reversed or otherwise terminated, provided that Parent shall not be obligated to commence any Legal Proceeding in connection therewith), or of any request by the SEC for amendment of the Form S-4 or the Joint Proxy Statement or comments on the Form S-4 or the Joint Proxy Statement and responses thereto or requests by the SEC for additional information relating thereto. If at any time prior to the Effective Time any information relating to Parent, the Company or any of their respective affiliates, officers or directors, should be discovered by Parent or the Company that should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to the stockholders of Parent and the Company.

(b)Parent shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do or cause to be done all things, necessary, proper or advisable under Applicable Law and the rules and policies of Nasdaq and the SEC to enable the listing of the Parent Common Stock being registered pursuant to the Form S-4 on Nasdaq no later than the Closing Date, subject to official notice of issuance. Parent shall also use its reasonable best efforts to obtain all necessary state securities law or “blue sky” permits and approvals required to carry out the transactions contemplated by this Agreement. The Parties will use commercially reasonable efforts to coordinate with respect to compliance with Nasdaq rules and regulations. The Company will cooperate with Parent as reasonably requested by Parent with respect to the listing application for the Parent Common Stock and promptly furnish to Parent all information concerning the Company and its stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 5.1(b).

1.2Company Stockholders Meeting; Company Change in Recommendation.

(c)The Company shall: (i) take all action necessary under all Applicable Laws and the Company’s certificate of incorporation and bylaws to call, give notice of and hold a meeting of the holders of Company Common Stock (the “Company Stockholders Meeting”) to vote on a proposal to (A) adopt this Agreement, (B) to the extent required by, and in accordance with, Regulation 14A under the Exchange Act, obtain advisory approval of a proposal in connection with a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the consummation of the Merger; and (C) adjourn the Company Stockholder Meeting in customary fashion; and (ii) submit such proposals to, and use its reasonable best efforts to solicit proxies in favor of such proposals from, such holders at the Company Stockholders Meeting, and shall not submit any other proposal to such holders in connection with the Company Stockholders Meeting without the prior written consent of Parent (other than matters required by Applicable Laws to be voted on by the Company’s stockholders in connection therewith). The Company, in consultation with Parent, shall set a record date for Persons entitled to notice of, and to vote at, the Company Stockholders Meeting and shall not change such record date without the prior written consent of


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Parent. The Company Stockholders Meeting shall be held as promptly as practicable after the commencement of the mailing of the Joint Proxy Statement to the Company’s stockholders (on a date mutually acceptable to the Company and Parent, which the Parties agree is intended to be on the same day). The Company shall ensure that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with all Applicable Laws. Notwithstanding anything to the contrary contained in this Agreement: the Company shall not postpone or adjourn the Company Stockholders Meeting without the consent of Parent, other than (A) to the extent necessary to ensure that any supplement or amendment to the Joint Proxy Statement that the Company’s board of directors has determined in good faith is required by Applicable Laws is disclosed to the Company’s stockholders, (B) to the extent the Company believes in good faith that such adjournment or postponement is reasonably necessary to allow reasonable additional time to solicit additional proxies necessary to obtain the Company Stockholder Approval, (C) if and to the extent such postponement or adjournment of the Company Stockholders Meeting is required by an order or decree issued by any court or other Governmental Authority of competent jurisdiction in connection with this Agreement or (D) if, as of the time at which the Company Stockholders Meeting is scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Company Stockholders Meeting, to the extent necessary to obtain such a quorum; provided, however, that with respect to clause (B), without the consent of Parent (which shall not be unreasonably withheld, conditioned or delayed) the Company shall not postpone or adjourn the Company Stockholders Meeting for more than ten (10) Business Days individually or more than thirty (30) Business Days in the aggregate and in no event later than four (4) Business Day prior to the Outside Date. It is the intention of the parties that, and each of the parties shall reasonably cooperate and use their commercially reasonable efforts to cause, the date and time of the Company Stockholders Meeting and the Parent Shareholders Meeting be coordinated such that they occur on the same calendar day (and in any event as close in time as possible).

(d)Subject to Section 5.2(d), the Proxy Statement shall include a statement to the effect that the Company’s board of directors (i) has unanimously determined and believes that the Merger is advisable and fair to and in the best interests of the Company and its stockholders; (ii) has unanimously approved this Agreement and unanimously approved the Contemplated Transactions, including the Merger, in accordance with the requirements of the DGCL; and (iii) unanimously recommends that the Company’s stockholders vote to adopt this Agreement at the Company Stockholders Meeting. The unanimous determination that the Merger is advisable and fair to and in the best interests of the Company and its stockholders and the unanimous recommendation of the Company’s board of directors that the Company’s stockholders vote to adopt this Agreement are collectively referred to as the “Company Board Recommendation.” The Company shall ensure that the Joint Proxy Statement includes the opinion of the financial advisors referred to in Section 2.23.

(e)Except as provided in Section 5.2(d), neither the Company’s board of directors nor any committee thereof shall: (i) withdraw or modify in a manner adverse to Parent or Merger Sub of the Company Board Recommendation (any action in this clause (i) being referred to as a “Company Recommendation Change”); (ii) recommend the approval, acceptance or adoption of, or approve, endorse, accept or adopt, any Acquisition Proposal; (iii) cause or permit any Acquired Company to execute or enter into any Company Alternative Acquisition Agreement; or (iv) resolve, agree or publicly propose to, or permit any Acquired Company or any Representative of any Acquired Company to resolve, agree or publicly propose to, take any of the actions referred to in this Section 5.2(c).

(f)Notwithstanding anything to the contrary contained in Section 5.2(c), at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote, the Company’s board of directors may withdraw or modify the Company Board


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Recommendation and, in the case of clause (i) below, may also cause the Company to terminate this Agreement in accordance with Section 8.1(j) and, concurrently with or following such termination, cause the Company to enter into any Company Alternative Acquisition Agreement in accordance with, and subject to compliance with, the provisions of Section 8.1(j):

(i)if: (A) an unsolicited, bona fide, written Acquisition Proposal is made to the Company after the date of this Agreement and is not withdrawn; (B) such Acquisition Proposal did not result directly or indirectly from a breach of the provisions of Section 4.4 or Section 5.2(D) the Company’s board of directors determines in good faith that such Acquisition Proposal constitutes a Company Superior Offer; (C) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that, in light of such Company Superior Offer, the failure to withdraw or modify the Company Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, would reasonably be expected to be inconsistent with its fiduciary obligations under Applicable Law; (D) no less than four (4) Business Days prior to withdrawing or modifying the Company Board Recommendation or terminating this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, the Company’s board of directors delivers to Parent a written notice (a “Company Recommendation Change Notice”) (1) stating that the Company has received a Company Superior Offer that did not result directly or indirectly from a breach of Section 4.4 or Section 5.2 (2) stating that the Company’s board of directors intends to withdraw or modify the Company Board Recommendation (and describing any intended modification of the Company Board Recommendation) or terminate this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, (3) specifying the material terms and conditions of such Company Superior Offer, including the identity of the Person making such Company Superior Offer and (4) attaching copies of the most current and complete draft of any Contract relating to such Company Superior Offer and all other documents and communications relating to such Company Superior Offer; (E) throughout such four (4) Business Day period, the Company engages (to the extent requested by Parent) in good faith negotiations with Parent to amend this Agreement in such a manner that the failure to withdraw or modify the Company Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, would not reasonably be expected to be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law; and (F) at the time of withdrawal or modification of the Company Board Recommendation or the termination of this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, the Company’s board of directors determines in good faith, after taking into account the advice of an independent financial advisor and the advice of the Company’s outside legal counsel, that the failure to withdraw or modify the Company Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(j) in order to accept such Company Superior Offer, would reasonably be expected to be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law in light of such Company Superior Offer; provided, however, that when making such determination, the Company’s board of directors shall be obligated to consider any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause (E) above or otherwise; or

(ii)if: (A) there shall arise after the date of this Agreement a material event, material development or change in circumstances that relates to and is material to the Acquired Companies taken as a whole (but does not relate to any Acquisition Proposal) that was not known, and would not reasonably be expected to have been known or foreseen, by any of the Acquired Companies on the date of this Agreement (or if known, the consequences of which were not known, and would not reasonably be expected to have been known or foreseen, by any of the Acquired Companies as of the date of this Agreement), which event, development or change in circumstance, or any material consequence thereof, becomes known to any of the Acquired Companies prior to the adoption of this Agreement by the Required Company


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Stockholder Vote and did not result from or arise out of the announcement or pendency of, or any action required to be taken (or to be refrained from being taken) pursuant to, this Agreement (any such material event, material development or material change in circumstances being referred to as a “Company Change in Circumstances”); (B) the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and the advice of the Company’s outside legal counsel, that, in light of such Company Change in Circumstances, the failure to withdraw or modify the Company Board Recommendation would reasonably be expected to be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law; (C) no less than four (4) Business Days prior to withdrawing or modifying the Company Board Recommendation, the Company’s board of directors delivers to Parent a written notice describing in reasonable detail the Company Change in Circumstances, stating that it intends to withdraw or modify the Company Board Recommendation in light of such Company Change in Circumstances and describing any intended modification of the Company Board Recommendation; (D) throughout such four (4) Business Day period, the Company engages (to the extent requested by Parent) in good faith negotiations with Parent to amend this Agreement in such a manner that the failure to withdraw or modify the Company Board Recommendation would not reasonably be expected to be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law in light of such Company Change in Circumstances; and (E) at the time of withdrawing or modifying the Company Board Recommendation, the Company’s board of directors determines in good faith, after taking into account the advice of an independent financial advisor and the advice of the Company’s outside legal counsel, that the failure to withdraw or modify the Company Board Recommendation would reasonably be expected to be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law; provided, however, that when making such determination, the Company’s board of directors shall be obligated to consider any changes to the terms of this Agreement proposed by Parent as a result of the negotiations required by clause (D) above or otherwise.

For purposes of clause (i) of the first sentence of this Section 5.2(d), any change in the form or amount of the consideration payable (including any modification in any proposed dividend payable in connection therewith) in connection with a Company Superior Offer, and any other material change to any of the terms of a Company Superior Offer, will be deemed to be a new Company Superior Offer, requiring a new Company Recommendation Change Notice and a new advance notice period; provided, however, that, in each case, the advance notice and negotiation period applicable to any such change to a Company Superior Offer pursuant to clauses (i)(C) and (i)(D) of the first sentence of this Section 5.2(d) shall be two (2) Business Days rather than four (4) Business Days.

(g)Subject to the Company’s right to terminate this Agreement in accordance with Section 8.1(j), the Company’s obligation to call, give notice of and hold the Company Stockholders Meeting in accordance with Section 5.2(a) shall not be limited or otherwise affected by the making, commencement, disclosure, announcement or submission of any Company Superior Offer or other Acquisition Proposal, by any Change in Circumstances or by any withdrawal or modification of the Company Board Recommendation. Without limiting the generality of the foregoing, the Company agrees that unless this Agreement is terminated in accordance with Section 8.1, the Company shall not submit any Acquisition Proposal to a vote of its stockholders.

Nothing contained in this Section 5.2 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that the failure to do so would reasonably be expected to be inconsistent with the Company’s board of director’s


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fiduciary obligations under Applicable Law; provided, however, that this Section 5.2 shall not be deemed to permit the Company’s board of directors to withdraw or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub or take any of the actions referred to in Section 5.2(c) except, in the case of a withdrawal or modification of the Company Board Recommendation, to the extent permitted by Section 5.2(d); provided, further, that in the case of each of clauses (i) and (ii) above, any such disclosure, other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) of the Exchange Act, shall be deemed to be a withdrawal or modification of the Company Board Recommendation in a manner adverse to Parent and Merger Sub unless the Company’s board of directors publicly and unanimously reaffirms the Company Board Recommendation in such disclosure.

1.12Parent Stockholders Meeting; Parent Change in Recommendation.

(h)Parent shall: (i) take all action necessary under all Applicable Laws and Parent’s certificate of incorporation and bylaws to call, give notice of and hold a meeting of the holders of Parent Common Stock (the “Parent Stockholders Meeting”) to vote on proposals to (A) approve the Parent Common Stock Issuance; (B) adjourn the Parent Stockholders Meeting in customary fashion; and (C) only if so elected by Parent, an amendment to Parent’s certificate of incorporation to authorize the board of directors of Parent to effect, following the Closing, a reverse stock split of all outstanding shares of Parent Common Stock at a reverse stock split ratio as determined by Parent (the “Parent Reverse Stock Split”); and (ii) submit such proposals to, and use its reasonable best efforts to solicit proxies in favor of such proposals from, such holders at the Parent Stockholders Meeting, and shall not submit any other proposal to such holders in connection with the Parent Stockholders Meeting without the prior written consent of the Company (other than matters required by Applicable Laws to be voted on by Parent’s stockholders in connection therewith). Parent, in consultation with the Company, shall set a record date for Persons entitled to notice of, and to vote at, the Parent Stockholders Meeting and shall not change such record date without the prior written consent of the Company. The Parent Stockholders Meeting shall be held as promptly as practicable after the commencement of the mailing of the Joint Proxy Statement to Parent’s stockholders (on a date mutually acceptable to the Company and Parent, which the Parties agree is intended to be on the same day). Parent shall ensure that all proxies solicited in connection with the Parent Stockholders Meeting are solicited in compliance with all Applicable Laws. Notwithstanding anything to the contrary contained in this Agreement: Parent shall not postpone or adjourn the Parent Stockholders Meeting without the consent of the Company, other than (A) to the extent necessary to ensure that any supplement or amendment to the Joint Proxy Statement that Parent’s board of directors has determined in good faith is required by Applicable Laws is disclosed to the Parent’s stockholders, (B) to the extent Parent believes in good faith that such adjournment or postponement is reasonably necessary to allow reasonable additional time to solicit additional proxies necessary to obtain the Required Parent Shareholder Vote, (C) if and to the extent such postponement or adjournment of the Parent Shareholders Meeting is required by an order or decree issued by an court of other Governmental Authority of competent jurisdiction in connection with this Agreement or (D) if, as of the time at which the Parent Stockholders Meeting is scheduled, there are insufficient shares of Parent Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Parent Stockholders Meeting, to the extent necessary to obtain such a quorum; provided, however, that with respect to clause (B), without the consent of the Company (which shall not be unreasonably withheld, conditioned or delayed) Parent shall not postpone or adjourn the Parent Stockholders Meeting for more than ten (10) Business Days individually or more than thirty (30) Business Days in the aggregate and in no event later than four (4) Business Day prior to the Outside Date. It is the intention of the parties that, and each of the parties shall reasonably cooperate and use their commercially reasonable to cause, the date and time of the Parent Shareholders Meeting and the Company


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Stockholders Meeting be coordinated such that they occur on the same calendar day (and in any event as close in time as possible).

(i)Subject to Section 5.3(d)(d): the Joint Proxy Statement shall include a statement to the effect that Parent’s board of directors (i) has unanimously approved the Parent Common Stock Issuance; and (ii) unanimously recommends that Parent’s stockholders vote to approve the Parent Common Stock Issuance at the Parent Stockholders Meeting. The unanimous recommendation of Parent’s board of directors that Parent’s stockholders vote to approve the Parent Common Stock Issuance is referred to as the “Parent Board Recommendation.” Parent shall ensure that the Joint Proxy Statement includes the opinion of the financial advisors referred to in Section 3.14.

(j)Except as provided in Section 5.3(d), neither Parent’s board of directors nor any committee thereof shall: (i) withdraw or modify in a manner adverse to the Company of the Parent Board Recommendation (any action in this clause (i) being referred to as a “Parent Recommendation Change” ); (ii) recommend the approval, acceptance or adoption of, or approve, endorse, accept or adopt, any Acquisition Proposal; (iii) cause or permit Parent or any of its Subsidiaries to execute or enter into any Parent Alternative Acquisition Agreement; or (iv) resolve, agree or publicly propose to, or permit Parent or any of its Subsidiaries or any Representative of Parent or any of its Subsidiaries to resolve, agree or publicly propose to, take any of the actions referred to in this Section 5.3(c).

(k)Notwithstanding anything to the contrary contained in Section 5.3(c), at any time prior to the adoption of the Parent Common Stock Issuance by the Required Parent Stockholder Vote, Parent’s board of directors may withdraw or modify the Parent Board Recommendation and, in the case of clause (i) below, may also cause Parent to terminate this Agreement in accordance with Section 8.1(k) and, concurrently with or following such termination, cause the Company to enter into any Parent Alternative Acquisition Agreement in accordance with, and subject to compliance with, the provisions of Section 8.1(k):

(iii)if: (A) an unsolicited, bona fide, written Acquisition Proposal is made to Parent after the date of this Agreement and is not withdrawn; (B) such Acquisition Proposal did not result directly or indirectly from a breach of the provisions of Section 4.5 or Section 5.3; (B) Parent’s board of directors determines in good faith that such Acquisition Proposal constitutes a Parent Superior Offer; (C) Parent’s board of directors determines in good faith, after having taken into account the advice of Parent’s outside legal counsel, that, in light of such Parent Superior Offer, the failure to withdraw or modify the Parent Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, would reasonably be expected to be inconsistent with its fiduciary obligations under Applicable Law; (D) no less than four (4) Business Days prior to withdrawing or modifying the Parent Board Recommendation or terminating this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, Parent’s board of directors delivers to the Company a written notice (a “Parent Recommendation Change Notice”) (1) stating that Parent has received a Parent Superior Offer that did not result directly or indirectly from a breach of Section 4.5 or Section 5.4, (2) stating that Parent’s board of directors intends to withdraw or modify the Parent Board Recommendation (and describing any intended modification of the Parent Board Recommendation) or terminate this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, (3) specifying the material terms and conditions of such Parent Superior Offer, including the identity of the Person making such Parent Superior Offer and (4) attaching copies of the most current and complete draft of any Contract relating to such Parent Superior Offer and all other documents and communications relating to such Parent Superior Offer; (E) throughout such four (4) Business Day period, Parent engages (to the extent requested by the Company) in good faith negotiations with the Company to amend this Agreement in such a manner that the failure to withdraw or modify the Parent


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Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, would not reasonably be expected to be inconsistent with the Parent’s board of director’s fiduciary obligations under Applicable Law; and (F) at the time of withdrawal or modification of the Parent Board Recommendation or the termination of this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, Parent’s board of directors determines in good faith, after taking into account the advice of an independent financial advisor and the advice of Parent’s outside legal counsel, that the failure to withdraw or modify the Parent Board Recommendation, or the failure to terminate this Agreement pursuant to Section 8.1(k) in order to accept such Parent Superior Offer, would reasonably be inconsistent with the Company’s board of director’s fiduciary obligations under Applicable Law in light of such Parent Superior Offer; provided, however, that when making such determination, Parent’s board of directors shall be obligated to consider any changes to the terms of this Agreement proposed by the Company as a result of the negotiations required by clause (E) above or otherwise; or

(iv)if: (A) there shall arise after the date of this Agreement a material event, material development or change in circumstances that relates to and is material to Parent and its Subsidiaries taken as a whole (but does not relate to any Acquisition Proposal) that was not known, and would not reasonably be expected to have been known or foreseen, by Parent or any of its Subsidiaries on the date of this Agreement (or if known, the consequences of which were not known, and would not reasonably be expected to have been known or foreseen, by Parent or any of its Subsidiaries as of the date of this Agreement), which event, development or change in circumstance, or any material consequence thereof, becomes known to Parent or any of its Subsidiaries prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote and did not result from or arise out of the announcement or pendency of, or any action required to be taken (or to be refrained from being taken) pursuant to, this Agreement (any such material event, material development or material change in circumstances being referred to as a “Parent Change in Circumstances”);; (B) Parent’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor and the advice of Parent’s outside legal counsel, that, in light of such Parent Change in Circumstances, the failure to withdraw or modify the Parent Board Recommendation would reasonably be expected to be inconsistent with the Parent’s board of director’s fiduciary obligations under Applicable Law; (C) no less than four (4) Business Days prior to withdrawing or modifying the Parent Board Recommendation, Parent’s board of directors delivers to the Company a written notice describing in reasonable detail the Parent Change in Circumstances, stating that it intends to withdraw or modify the Parent Board Recommendation in light of such Parent Change in Circumstances and describing any intended modification of the Parent Board Recommendation; (D) throughout such four (4) Business Day period, Parent engages (to the extent requested by the Company) in good faith negotiations with the Company to amend this Agreement in such a manner that the failure to withdraw or modify the Parent Board Recommendation would not reasonably be expected to be inconsistent with the Parent’s board of director’s fiduciary obligations under Applicable Law in light of such Parent Change in Circumstances; and (E) at the time of withdrawing or modifying the Parent Board Recommendation, Parent’s board of directors determines in good faith, after taking into account the advice of an independent financial advisor and the advice of Parent’s outside legal counsel, that the failure to withdraw or modify the Parent Board Recommendation would reasonably be expected to be inconsistent with Parent’s board of director’s fiduciary obligations under Applicable Law; provided, however, that when making such determination, Parent’s board of directors shall be obligated to consider any changes to the terms of this Agreement proposed by the Company as a result of the negotiations required by clause (D) above or otherwise.

For purposes of clause (i) of the first sentence of this Section 5.3(d), any change in the form or amount of the consideration payable (including any modification in any proposed dividend payable in connection therewith) in connection with a Parent Superior Offer, and any other


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material change to any of the terms of a Parent Superior Offer, will be deemed to be a new Parent Superior Offer, requiring a new Parent Recommendation Change Notice and a new advance notice period; provided, however, that, in each case, the advance notice and negotiation period applicable to any such change to a Parent Superior Offer pursuant to clauses (i)(C) and (i)(D) of the first sentence of this Section 5.3(d) shall be two (2) Business Days rather than four (4) Business Days.

(l)Subject to Parent’s right to terminate this Agreement in accordance with Section 8.1(k), Parent’s obligation to call, give notice of and hold the Parent Stockholders Meeting in accordance with Section 5.3(a) shall not be limited or otherwise affected by the making, commencement, disclosure, announcement or submission of any Parent Superior Offer or other Acquisition Proposal, by any Change in Circumstances or by any withdrawal or modification of the Parent Board Recommendation. Without limiting the generality of the foregoing, Parent agrees that unless this Agreement is terminated in accordance with Section 8.1, Parent shall not submit any Acquisition Proposal to a vote of its stockholders.

Nothing contained in this Section 5.3 or elsewhere in this Agreement shall prohibit Parent from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if Parent’s board of directors determines in good faith, after having taken into account the advice of Parent’s outside legal counsel, that the failure to do so would reasonably be expected to be inconsistent with the Parent’s board of director’s fiduciary obligations under Applicable Law; provided, however, that this Section 5.3 shall not be deemed to permit Parent’s board of directors to withdraw or modify the Parent Board Recommendation in a manner adverse to the Company or take any of the actions referred to in Section 5.3(c) except, in the case of a withdrawal or modification of the Parent Board Recommendation, to the extent permitted by Section 5.3(d); provided, further, that in the case of each of clauses (i) and (ii) above, any such disclosure, other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) of the Exchange Act, shall be deemed to be a withdrawal or modification of the Parent Board Recommendation in a manner adverse to the Company unless Parent’s board of directors publicly and unanimously reaffirms the Parent Board Recommendation in such disclosure.

1.10Employee Benefits.

(m)If requested by Parent in writing at least five (5) Business Days prior to the Closing Date, the Company shall take (or cause to be taken) all actions necessary or appropriate to terminate, effective no later than the day prior to the date on which the Merger becomes effective, any Company Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “Company 401(k) Plan”). If the Company is required to terminate any Company 401(k) Plan, then the Company shall provide to Parent prior to the Closing Date written evidence of the adoption by the Company’s board of directors of resolutions authorizing the termination of such Company 401(k) Plan (the form and substance of which shall be subject to the prior review and comment of Parent, which comments shall be considered in good faith), effective no later than the day prior to the date on which the Merger becomes effective. The Company shall also consider in good faith taking such other actions in furtherance of terminating such Company 401(k) Plan as Parent may reasonably request. If the distributions of assets from the trust of any Company 401(k) Plan that is terminated pursuant to this Section 5.4(a) are reasonably anticipated to cause or result in liquidation charges, surrender charges or other fees to be imposed upon the account of any participant or beneficiary of such Company 401(k) Plan or upon the Company or any participating employer, then the Company shall take such actions as are necessary to estimate the amount of such charges or other fees and provide its estimate of that amount in writing to Parent at least three (3) Business Days prior to the Closing Date. Parent may request in writing at least


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five (5) Business Days prior to the Closing Date that any other Company Employee Plan that is a health or welfare benefit plan be terminated prior to the Effective Time, and if Parent makes such request to the Company, the Company shall take such actions described in this Section 5.4(a) with respect to such Company Employee Plan, other than those described in the immediately preceding sentence. Parent shall take all commercially reasonable steps necessary to permit each eligible Continuing Employee who has received an eligible rollover distribution (as defined in Section 402(c)(4) of the Code) from the Company 401(k) Plan, if any, to roll such eligible rollover distribution (including any associated plan loans) into an account under a defined contribution plan sponsored by Parent or any of its Affiliates (the “Parent 401(k) Plan”), in accordance with and subject to the terms of the Parent 401(k) Plan and the Code.

(n)To the extent any employee notification or consultation requirements are imposed by Applicable Laws with respect to the Contemplated Transactions, the Company shall consult with Parent and shall ensure that such notification or consultation requirements are complied with prior to the Effective Time. Prior to the Effective Time, none of the Acquired Companies or any of their respective Affiliates shall communicate with continuing employees regarding post-Closing employment matters, including post-Closing employee benefits and compensation or other compensation or benefits matters related to or impacted by any of the Contemplated Transactions (whether alone or in combination with additional events), including the matters described in this Section 5.4, without the prior written approval of Parent, which shall not be unreasonably withheld. Prior to the Effective Time, neither Parent nor any of its Affiliates shall communicate with continuing employees regarding post-Closing employment matters, including post-Closing employee benefits and compensation or other compensation or benefits matters related to or impacted by any of the Contemplated Transactions (whether alone or in combination with additional events), including the matters described in this Section 5.4, without the prior written approval of Company, which shall not be unreasonably withheld. Notwithstanding the foregoing, Parent retains the right, in its sole and absolute discretion after discussions with the Company, to approve or reject any tentative agreements reached in connection with notification or consultation requirements.

(o)For a period of twelve (12) months following the Closing Date (the “Continuation Period”), Parent shall, or shall cause the Surviving Corporation to, provide each individual who is an employee of any Acquired Company immediately prior to the Closing (each, a “Continuing Employee”) for so long as they continue to be employed by Parent, the Surviving Corporation or their Subsidiaries during such twelve (12) month period with annual base salary or wages, bonus opportunities, equity-based incentive compensation opportunities and other employee benefits that are, in the aggregate, substantially equivalent to those provided to similarly situated employees of Parent and its Subsidiaries (other than the Surviving Corporation and its Subsidiaries) under the applicable benefit plans, programs, policies, agreements and arrangements of Parent and its Subsidiaries (other than the Surviving Corporation and its Subsidiaries). Without limiting the foregoing, Parent shall, or shall cause the Surviving Corporation to, provide severance benefits to Continuing Employees whose employment is terminated in the Continuation Period that are no less favorable than the severance benefits that would provided to similarly situated employees of Parent and its Subsidiaries (other than the Surviving Corporation and its Subsidiaries).

(p)Each Continuing Employee shall receive service credit for service accrued or deemed accrued or deemed accrued on or prior to the Effective Time for purposes of each Parent Employee Plan providing severance and vacation/paid-time off benefits under which each Continuing Employee may be eligible to participate on or after the Effective Time to the same extent recognized by the Company or any of its Subsidiaries under comparable Company Employee Plans immediately prior to the Effective Time; provided, however, that such crediting of service shall not operate to duplicate any benefit or the funding of any such benefit for the same period of service.


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(q)Nothing in this Section 5.4 or elsewhere in this Agreement shall: (i) be construed to create a right in any employee of the Acquired Companies to employment with Parent, the Surviving Corporation or any other Subsidiary of Parent; (ii) be deemed to establish, amend, modify or cause to be adopted any Company Employee Plan or any other benefit plan, program, agreement or arrangement maintained or sponsored by Parent, the Surviving Corporation or any of their respective Affiliates; or (iii) limit the ability of Parent, the Surviving Corporation or any of their respective Affiliates from establishing, amending, modifying or terminating any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, in each case, following the Effective Time.

1.10Indemnification of Officers and Directors.

(r)For a period of not less than six (6) years from the Effective Time, Parent shall, and shall cause the Surviving Corporation or any applicable Subsidiary thereof (collectively, the “D&O Indemnifying Parties”), to the fullest extent each such D&O Indemnifying Party is authorized or permitted by Applicable Law, to: (i) indemnify and hold harmless each person who is at the date of this Agreement, was previously, or during the period from the date of this Agreement through the date of the Effective Time will be, serving as a director or officer of the Company or any of its Subsidiaries or, at the request or for the benefit of the Company or any of its Subsidiaries, as a director, trustee or officer of any other entity or any benefit plan maintained by the Company or any of its Subsidiaries (collectively, the “D&O Indemnified Parties”), as now or hereafter in effect, in connection with any D&O Claim and any losses, claims, damages, liabilities, Claim Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such D&O Claim; and (ii) promptly advance to such D&O Indemnified Party any Claim Expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any D&O Claim in advance of the final disposition of such D&O Claim, including payment on behalf of or advancement to the D&O Indemnified Party of any Claim Expenses incurred by such D&O Indemnified Party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to the D&O Indemnifying Party’s receipt of a written undertaking by or on behalf of such D&O Indemnified Party to repay such Claim Expenses if it is ultimately determined under Applicable Law that such D&O Indemnified Party is not entitled to be indemnified. All rights to indemnification and advancement conferred hereunder shall continue as to a Person who has ceased to be a director, officer or employee of the Company or any of its Subsidiaries after the date of this Agreement and shall inure to the benefit of such Person’s heirs, successors, executors and personal and legal representatives. As used in this Section 5.5: (x) the term “D&O Claim” means any threatened, asserted, pending or completed claim, action, suit, proceeding, inquiry or investigation, whether instituted by any party hereto, any Governmental Authority or any other Person, whether civil, criminal, administrative, investigative or other, including any arbitration or other alternative dispute resolution mechanism, arising out of or pertaining to matters that relate to such D&O Indemnified Party’s duties or service (A) as a director, officer or employee of the Company or the applicable Subsidiary thereof at or prior to the Effective Time (including with respect to any acts, facts, events or omissions occurring in connection with the approval of this Agreement, the Merger or the consummation of the other transactions contemplated by this Agreement, including the consideration and approval thereof and the process undertaken in connection therewith and any D&O Claim relating thereto) or (B) as a director, trustee, officer or employee of any other entity or any benefit plan maintained by the Company or any of its Subsidiaries (for which such D&O Indemnified Party is or was serving at the request or for the benefit of the Company or any of its Subsidiaries) at or prior to the Effective Time; and (y) the term “Claim Expenses” means reasonable out-of-pocket attorneys’ fees and all other reasonable out-of-pocket costs, expenses and obligations (including


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experts’ fees, travel expenses, court costs, retainers, transcript fees, legal research, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in (including on appeal) any D&O Claim for which indemnification is authorized pursuant to this Section 5.5(a), including any action relating to a claim for indemnification or advancement brought by a D&O Indemnified Party. No D&O Indemnifying Party shall settle, compromise or consent to the entry of any judgment in any actual or threatened D&O Claim in respect of which indemnification has been sought by such D&O Indemnified Party hereunder unless such settlement, compromise or judgment includes an unconditional release of such D&O Indemnified Party from all liability arising out of such D&O Claim, or such D&O Indemnified Party consents thereto.

(s)Without limiting the foregoing, Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company or any of its Subsidiaries as provided in the Company organizational documents, similar organizational documents of the Company’s Subsidiaries and indemnification agreements of the Company and its Subsidiaries shall survive the Merger and shall continue in full force and effect in accordance with their terms to the extent they are enforceable under Applicable Law. For a period of not less than six (6) years from the Effective Time, Parent shall cause the organizational documents of the Surviving Corporation to contain provisions no less favorable with respect to indemnification, advancement of expenses and limitations on liability of directors and officers than are set forth in the Company organizational documents, which provisions shall not be amended, repealed or otherwise modified for a period of at least six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors, officers or employees of the Company. The Company may purchase (and pay in full the aggregate premium for) a six-year prepaid “tail” insurance policy (which policy by its express terms shall survive the Merger) of at least the same coverage and amounts and containing terms and conditions that are no less favorable to the covered individuals as the Company’s and its Subsidiaries’ existing directors’ and officers’ insurance policy or policies with a claims period of six (6) years from the Effective Time for D&O Claims arising from facts, acts, events or omissions that occurred on or prior to the Effective Time; provided that in the event the aggregate costs, premium and expenses of such tail insurance policy are in excess of $3,600,000.00, the Company shall not purchase such policy absent the consent of Parent. If the Company fails to obtain such tail policy prior to the Effective Time, Parent or the Surviving Corporation shall use commercially reasonable efforts to obtain such a tail policy; provided that Parent and the Surviving Corporation shall in no event be obligated to purchase such policy if the aggregate costs, premium and expenses of such tail insurance policy are in excess of $3,600,000.00. Parent and the Surviving Corporation shall cause any such policy (whether obtained by Parent, the Company or the Surviving Corporation) to be maintained in full force and effect, for its full term, and Parent shall cause the Surviving Corporation to honor all its obligations thereunder.

(t)If any of Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges with or into any other Person and shall not be the continuing or surviving company, partnership or other Person of such consolidation or merger or (ii) liquidates, dissolves or winds-up, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as applicable, assume the obligations set forth in this Section 5.5.


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(u)The provisions of this Section 5.5 are intended to be for the benefit of, and will be enforceable by, each of the Indemnified Persons, who are intended third-party beneficiaries of this Section 5.5 from and after the Effective Time.

1.13Reasonable Best Efforts; Consultation and Notice.

(v)In the event that the aggregate Merger Consideration exceeds an HSR Act threshold set forth in either 15 USC §§ 18a(a)(2)(A) or (B), as determined by 16 C.F.R. § 801.10(c)(1)(ii), and subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, and in any event no later than fifteen (15) Business Days after a determination has been made that such threshold has been exceeded, make all required filings of Notification and Report Forms pursuant to the HSR Act, including cooperating with each other and sharing information as needed to make those filings (ii) as promptly as practicable make any required filings under the Antitrust Laws of any other jurisdiction, where such filings may be in draft form in jurisdictions in which that is the customary practice, (iii) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or actions or nonactions, waivers, authorizations, expirations or terminations of waiting periods, clearances, consents or approvals are required to be obtained from, any other Governmental Authorities (including any foreign jurisdiction in which the Company or any of its Subsidiaries are operating any business) or third parties in connection with the execution and delivery of this Agreement and the consummation of the Contemplated Transactions and (B) timely making all such filings and timely seeking all such actions or nonactions, waivers, authorizations, expirations or terminations of waiting periods, clearances, consents and approvals, (iv) supply as promptly as practicable such information or documentation that may be requested pursuant to any Antitrust Law by any Governmental Authority, and (v) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Contemplated Transactions.

(w)Without limiting the provision of, and subject to, Section 5.6(a). the Parties agree to use good faith efforts to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to the Antitrust Laws, (ii) to the extent not prohibited by such Governmental Authority, not participate independently in any such meeting without first giving the other Parties (or the other Parties’ outside counsel) an opportunity to attend and participate in such meeting, (iii) to the extent practicable, give the other Parties reasonable advance notice of all oral communications with any Governmental Authority relating to Antitrust Laws, (iv) if any Governmental Authority initiates an oral communication regarding the Antitrust Laws, promptly notify the other Parties of the substance of such communication, (v) provide each of the other Parties with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to proceedings under the Antitrust Laws) with a Governmental Authority regarding the Antitrust Laws and (vi) promptly provide each of the other Parties with copies of all written communications to or from any Governmental Authority relating to the Antitrust Laws, except that the Parties are not required to share their respective HSR filings. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other Parties under this Section 5.6(b) as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel and outside economic consultants of the recipient and will not be disclosed by such outside counsel or outside economic consultants to employees, officers, or directors of the recipient without the advance written consent of the Party providing such materials.


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(x)The Company and Parent may jointly determine that the taking of such action would enhance the likelihood of obtaining any necessary clearance under the Antitrust Laws by the Outside Date, extend any waiting period or agree to refile under the HSR Act or any other Antitrust Law.

(y)The Company and Parent shall respond as promptly as practicable under the circumstances to any inquiries received from any Governmental Authority or any other authority enforcing applicable Antitrust Laws for additional information or documentation in connection with that review.

(z)Notwithstanding anything to the contrary in this Agreement, neither Parent, the Company nor any of their respective Subsidiaries shall be required to dispose of or hold separate, or agree to dispose of or hold separate or restrict its ownership and operation of, all or any material portion of the business or assets of the Company and its Subsidiaries or Parent and its Subsidiaries, in order to enable the Contemplated Transactions to be consummated prior to the Outside Date, in each case unless mutually agreed to by Parent and the Company.

(aa)Notwithstanding anything in this Agreement to the contrary, Parent and the Company shall jointly, control and lead all communications and strategy relating to the Antitrust Laws.

1.11Disclosure. The Parties shall agree to a form of initial press release to be issued with respect to the Contemplated Transactions. Parent and the Company (a) shall consult with each other before making, and give each other a reasonable opportunity to review and comment upon, any press release or other public statement with respect to this Agreement, the Merger or any of the other Contemplated Transactions, and (b) shall not issue any such press release or make any such public statement that is inconsistent with the initial press release or other communication that has previously been agreed between the Parties without the other Party’s concurrence, except as may be required by Applicable Laws, court process or by obligations pursuant to any listing agreement with any national securities exchange and except as permitted by Sections 4.4 or 4.5.

1.12Resignation of Officers and Directors. Unless otherwise directed by Parent, the Company shall use commercially reasonable efforts to obtain and deliver to Parent at or prior to the Effective Time (or, at the option of Parent, at a later date) the resignation of each officer and director of each of the Acquired Companies, effective as of the Effective Time (it being understood that such resignation shall not constitute a voluntary termination of employment under any Company Employee Agreement or Company Employee Plan applicable to such individual’s status as an officer or director of an Acquired Company).

1.13Delisting. Prior to the Effective Time, the Company shall cooperate with Parent and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under Applicable Laws to enable the de-listing by the Surviving Corporation of the Company Common Stock and Company Warrants from Nasdaq and the deregistration of the Company Common Stock and Company Warrants under the Exchange Act as promptly as practicable after the Effective Time, and in any event no more than two (2) Business Days after the Closing Date.

1.14Section 16 Matters. Prior to the Effective Time, the Company shall take such reasonable steps as are required to cause the disposition of Company Common Stock and Company Equity Awards in connection with the Merger by each officer or director of the Company who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 under the Exchange Act.


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1.15Stockholder Litigation. Each of the Company and Parent shall promptly notify the other of any stockholder demands, litigations, arbitrations or other similar claims, actions, suits or proceedings (including derivative claims) commenced against it, its Subsidiaries and/or its or its Subsidiaries’ respective directors or officers relating to this Agreement or any of the transactions contemplated hereby or any matters relating thereto (collectively, “Transaction Litigation”) and shall keep the other party informed regarding any Transaction Litigation (including by promptly furnishing to the other party and such other party’s Representatives such information relating to such Transaction Litigation as may reasonably be requested). Each of the Company and Parent shall reasonably cooperate with the other in the defense or settlement of any Transaction Litigation, and shall give the other party the opportunity to consult with it regarding the defense and settlement of such Transaction Litigation, shall consider in good faith the other party’s advice with respect to such Transaction Litigation and shall give the other party the opportunity to participate (at the other party’s expense) in (but not control) the defense and settlement of such Transaction Litigation. Prior to the Effective Time, other than with respect to any Transaction Litigation where the parties are adverse to each other, neither Party shall settle or offer to settle any Transaction Litigation without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed).

1.16Takeover Statutes and Rights. If any Takeover Statute is or may become applicable to this Agreement, the Merger or any of the other Contemplated Transactions, the Company and the Company’s board of directors shall use their reasonable best efforts to grant such approvals and take such actions as are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize the effects of such Takeover Statute on this Agreement, the Merger and the other Contemplated Transactions.

1.17Certain Corporate Governance and Other Matters.

(ab)Prior to the Closing, Parent’s board of directors shall take all necessary actions so that immediately following the Effective Time, Parent’s board of directors shall consist of ten (10) members and shall be composed of five (5) current members of Parent’s board of directors (the “Designated Parent Directors”) designated by Parent, before the mailing of the Joint Proxy Statement, three (3) current members of the Company’s board of directors (the “Designated Company Directors”) designated by the Company, before the mailing of the Joint Proxy Statement, one (1) director mutually agreed upon by the Parties acting reasonably and in good faith who shall be “independent” in accordance with the Applicable Laws of Nasdaq, and one (1) director who shall be Chief Executive Officer of Parent as of the Effective Time.

(ac)Parent, through Parent’s board of directors and subject to the fiduciary duties of the board of directors of Parent to the stockholders of Parent and any earlier death, resignation or removal of any Designated Company Director, shall take all necessary action to nominate each Designated Company Director for election to Parent’s board of directors in the proxy statement relating to the first annual meeting of the stockholders of Parent following the Closing at which the term of the class of directors to which such Designated Company Director is allocated expires. From and after the Effective Time, each person designated as a director of Parent shall serve as a director until such person’s successor shall be elected and qualified or such person’s earlier death, resignation or removal in accordance with the certificate of incorporation of Parent. If, prior to the Effective Time, any Designated Parent Director is unwilling or unable to serve (or to continue to serve) as a director of Parent as a result of illness, death, resignation or any other reason, then, any replacement for such person shall be selected by the board of directors of Parent, after consultation with the Company, and such replacement shall constitute a Designated Parent Director. If prior to the Effective Time, any Designated Company Director is unwilling or unable to serve (or to continue to serve) as a director of the Company or Parent as a result of illness, death, resignation or any other reason, then, any replacement for


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such person shall be selected by the board of directors of the Company, after consultation with Parent, and such replacement shall constitute a Designated Company Director.

(ad)The Designated Parent Directors and the Designated Company Directors are intended to be third-party beneficiaries of this Section 5.13.

1.1Monthly Financial Statements. No later than fifteen (15) days after the end of each month during the Pre-Closing Period, (a) Parent shall deliver to the Company a statement prepared in good faith setting forth the aggregate cash and cash equivalents of Parent and its Subsidiaries as of the end of such preceding month, on a consolidated basis, determined in accordance with GAAP; and (b) the Company shall deliver to Parent a written statement prepared in good faith setting forth the aggregate cash, cash equivalents and investments of the Acquired Companies as of the end of such preceding month, on a consolidated basis, determined in accordance with GAAP.

Section 6.Conditions Precedent to Obligations of Parent and Merger Sub

The obligations of Parent and Merger Sub to effect the Merger and otherwise consummate the Contemplated Transactions are subject to the satisfaction, at or prior to the Closing, of each of the following conditions:

1.18Accuracy of Representations.

(a)Each of the representations and warranties of the Company contained in this Agreement, other than the Specified Company Representations, shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all respects as of such specified date), except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have or result in, a Company Material Adverse Effect; provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates all “Company Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded.

(b)(i) Each of the Specified Company Representations that is qualified by the term Company Material Adverse Effect shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all respects as of such specified date), and (ii) each other Specified Company Representations (other than the representations and warranties contained in the first, second and third sentences of Section 2.3(a), Section 2.3(b) and Section 2.3(d)) shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all material respects as of such specified date); provided, however, that, with respect to clause (ii), for purposes of determining the accuracy of such representations and warranties as of the foregoing dates all “Company Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded.

(c)Each of the representations and warranties of the Company contained in the first, second and third sentences of Section 2.3(a), Section 2.3(b) and Section 2.3(d) shall have been accurate in all respects as of the date of this Agreement and as of the


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Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all respects as of such specified date), except that any inaccuracies in such representations and warranties that are, in the aggregate, de minimis in nature and amount will be disregarded.

1.14Performance of Covenants. Each of the covenants and obligations in this Agreement that the Company is required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.

1.15Stockholder Approval. (a) This Agreement shall have been duly adopted by the Required Company Stockholder Vote and (b) the approval of the Parent Common Stock Issuance shall have been duly adopted by the Required Parent Stockholder Vote.

1.16Closing Certificate. Parent shall have received a certificate executed by an executive officer of the Company confirming that the conditions set forth in Sections 6.1, 6.2 and 6.5 have been duly satisfied.

1.17No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Company Material Adverse Effect.

1.18HSR Clearance. Any waiting period (and any extension thereof) applicable to the Merger under the HSR Act shall have been terminated or shall have expired, and any other waiting periods or suspension periods under any other Antitrust Laws shall have expired or been terminated and any necessary approvals or clearances under those Laws shall have been obtained.

1.19No Injunctions or Legal Restraints. No temporary restraining order, preliminary or permanent injunction or other Order issued by any court of competent jurisdiction or other Governmental Authority or other legal restraint or prohibition (collectively, “Legal Restraints”), and no Legal Proceeding by any Governmental Authority, that has the effect of preventing the consummation of the Merger or that makes the consummation of the Merger illegal shall have been enacted that remains in effect.

1.20Registration Statement. The Form S-4 shall have been declared effective under the Securities Act, no stop order suspending the effectiveness of the Form S-4 shall be in effect and no proceedings for such purpose shall be pending before the SEC.

1.21Listing. The shares of Parent Common Stock issuable to the Company stockholders in accordance with this Agreement shall have been authorized for listing on Nasdaq, subject to official notice of issuance.

1.22Company Cash Amount. The Company Cash Amount set forth on the Company Closing Statement, in each case as finally determined pursuant to Section 1.11(a), shall meet or exceed the Company Minimum Cash Amount.

Section 7.Conditions Precedent to Obligation of the Company

The obligation of the Company to effect the Merger and otherwise consummate the Contemplated Transactions is subject to the satisfaction, at or prior to the Closing, of the following conditions:

1.19Accuracy of Representations.


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(a)Each of the representations and warranties of Parent and Merger Sub contained in this Agreement, other than the Specified Parent Representations, shall have been accurate in all respects as of the date of this Agreement and shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all respects as of such specified date), except that any inaccuracies in such representations and warranties will be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute, and would not reasonably be expected to have or result in, a Parent Material Adverse Effect; provided, however, that, for purposes of determining the accuracy of such representations and warranties as of the foregoing dates all “Parent Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded.

(b)(i) Each of the Specified Parent Representations that is qualified by the term Parent Material Adverse Effect shall be accurate in all respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all respects as of such specified date), and (ii) each other Specified Parent Representations (other than the representations and warranties contained in the first, second and third sentences of Section 3.3(a), Section 3.3(b) and Section 3.3(d)) shall have been accurate in all material respects as of the date of this Agreement and shall be accurate in all material respects as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified date, which shall have been accurate in all material respects as of such specified date); provided, however, that, with respect to clause (ii), for purposes of determining the accuracy of such representations and warranties as of the foregoing dates all “Parent Material Adverse Effect” and other materiality and similar qualifications limiting the scope of such representations and warranties shall be disregarded.

(c)Each of the representations and warranties of Parent contained in the first, second and third sentences of Section 3.3(a), Section 3.3(b) and Section 3.3(d) shall have been accurate in all respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (other than any such representation and warranty made as of a specified earlier date, which shall have been accurate in all respects as of such specified date), except that any inaccuracies in such representations and warranties that are, in the aggregate, de minimis in nature and amount will be disregarded.

1.11Performance of Covenants. Each of the covenants and obligations in this Agreement that Parent or Merger Sub are required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.

1.12Stockholder Approval. (a) This Agreement shall have been duly adopted by the Required Company Stockholder Vote and (b) the approval of the Parent Common Stock Issuance shall have been duly adopted by the Required Parent Stockholder Vote.

1.13Closing Certificate. The Company shall have received a certificate executed by an executive officer of Parent confirming that the conditions set forth in Sections 7.1, 7.2 and 7.5 have been duly satisfied.

1.14No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any Parent Material Adverse Effect.

1.15HSR Clearance. Any waiting period (and any extension thereof) applicable to the Merger under the HSR Act shall have been terminated or shall have expired, and any other waiting periods or suspension periods under any other Antitrust Laws shall have


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expired or been terminated and any necessary approvals or clearances under those Laws shall have been obtained.

1.16No Injunctions or Legal Restraints. No Legal Restraint, and no Legal Proceeding by any Governmental Authority, that has the effect of preventing the consummation of the Merger or that makes the consummation of the Merger illegal shall have been enacted that remains in effect.

1.17Registration Statement. The Form S-4 shall have been declared effective under the Securities Act, no stop order suspending the effectiveness of the Form S-4 shall be in effect and no proceedings for such purpose shall be pending before the SEC.

1.18Listing. The shares of Parent Common Stock issuable to the Company stockholders in accordance with this Agreement shall have been authorized for listing on Nasdaq, subject to official notice of issuance.

1.19Parent Cash Amount. The Parent Cash Amount set forth on the Parent Closing Statement, in each case as finally determined pursuant to Section 1.11(b), shall meet or exceed the Parent Minimum Cash Amount.

Section 8.Termination

1.20Termination. This Agreement may be terminated prior to the Effective Time (whether before or after the adoption of this Agreement by the Required Company Stockholder Vote and the Required Parent Stockholder Vote) by written notice of the terminating Party to the other Parties:

(a)by mutual written consent of Parent and the Company;

(b)by either Parent or the Company if the Merger shall not have been consummated by 11:59 p.m. (New York time) on February 9, 2023 (the “Outside Date”); provided, however, that (A) if on such date, the conditions to the Closing set forth in Sections 6.6 and 7.6 or Sections 6.7 and 7.7 (if the Legal Restraint or Legal Proceeding relates to Antitrust Laws) shall not have been satisfied, but all other conditions to the Closing shall have been satisfied (or in the case of conditions that by their terms are to be satisfied at the Closing, shall be capable of being satisfied on such date) or waived, then the Outside Date may be extended by either Parent or the Company for a period of ninety (90) days by written notice to the other Party; provided, further, that if the failure to consummate the Merger by the Outside Date is primarily and proximately attributable to a failure on the part of such Party to perform any covenant or obligation in this Agreement required to be performed by such Party at or prior to the Effective Time, then such Party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(b); provided, further, that the Outside Date (including as it may have been previously extended) shall be automatically extended without any action of any Party to the extent necessary for purposes of determining the Company Cash Amount or the Parent Cash Amount and for the Closing to occur thereafter, in each case, pursuant to Section 1.11.

(c)by either Parent or the Company if any Legal Restraint or Legal Proceeding having the effect set forth in Section 6.7 or Section 7.7 shall be in effect and shall have become final and nonappealable; provided, however, that a Party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the cause of the Legal Restraint or Legal Proceeding is primarily and proximately attributable to a failure on the part of such Party to perform any covenant or obligation in this Agreement required to be performed by such Party at or prior to the Effective Time;


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(d)by either Parent or the Company if: (i) the Company Stockholders Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement; and (ii) this Agreement shall not have been adopted at the Company Stockholders Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Vote; provided, however, that a Party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) if the failure to have this Agreement adopted by the Required Company Stockholder Vote is primarily and proximately attributable to a failure on the part of such Party to perform any covenant or obligation in this Agreement required to be performed by such Party at or prior to the Effective Time;

(e)by either Parent or the Company if: (i) the Parent Stockholders Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Parent’s stockholders shall have taken a final vote on a proposal to approve of the Parent Common Stock Issuance; and (ii) the Parent Common Stock Issuance shall not have been approved at the Parent Stockholders Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Vote; provided, however, that a Party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(e) if the failure to have the Parent Common Stock Issuance approved by the Required Parent Stockholder Vote is primarily and proximately attributable to a failure on the part of such Party to perform any covenant or obligation in this Agreement required to be performed by such Party at or prior to the Effective Time;

(f)by Parent (at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote) if a Company Triggering Event shall have occurred; provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(f) if Parent or Merger Sub is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by Parent or Merger Sub would cause any condition set forth in Section 7.1 or Section 7.2 not to be satisfied;

(g)by the Company (at any time prior to the approval of the Parent Common Stock Issuance by the Required Parent Stockholder Vote) if a Parent Triggering Event shall have occurred; provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(g) if the Company is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by the Company would cause any condition set forth in Section 6.1 or Section 6.2 not to be satisfied;

(h)by Parent if: (i) any of the Company’s representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that any of the conditions set forth in Section 6.1 would not be satisfied; or (ii) any of the Company’s covenants or obligations contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Company’s representations or warranties as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by the Company is curable by the Company prior to the Outside Date (as it may be extended in accordance with Section 8.1(b)) and the Company is continuing to exercise its reasonable best efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 8.1(h) on account of such inaccuracy or breach unless such inaccuracy or breach shall remain uncured for a period of thirty (30) days commencing on the date that Parent gives the Company notice of such inaccuracy or breach; provided, further, that this Agreement may not be terminated pursuant to this Section 8.1(h) if Parent or Merger Sub is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which


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breach by Parent or Merger Sub would cause any condition set forth in Section 7.1 or Section 7.2 not to be satisfied;

(i)by the Company if: (i) any of Parent’s representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that any of the conditions set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants or obligations contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations or warranties as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by Parent is curable by Parent by the Outside Date (as it may be extended in accordance with Section 8.1(b)) and Parent is continuing to exercise its reasonable best efforts to cure such inaccuracy or breach, then the Company may not terminate this Agreement under this Section 8.1(i) on account of such inaccuracy or breach unless such inaccuracy or breach shall remain uncured for a period of thirty (30) days commencing on the date that the Company gives Parent notice of such inaccuracy or breach; provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(i) if the Company is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by the Company would cause any condition set forth in Section 6.1or Section 6.2 not to be satisfied;

(j)by the Company (at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote) in order to accept a Company Superior Offer in accordance with Section 5.2(d) and enter into a binding, written, definitive agreement providing for the consummation of the transaction contemplated by such Company Superior Offer that has been executed on behalf of the Person that made such Superior Offer (a “Company Alternative Acquisition Agreement”), if concurrently with the termination of this Agreement pursuant to this Section 8.1(j), the Company enters into the Company Alternative Acquisition Agreement with respect to such Company Superior Offer; provided, that immediately prior to or concurrently with such termination, the Company shall have paid to Parent or its designee the Company Termination Fee; or

(k)by Parent (at any time prior to the approv