UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 21, 2023
OCA ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
Delaware | |
001-39901 | |
85-2218652 |
(State or other jurisdiction of incorporation) | |
(Commission File Number) | |
(IRS Employer Identification No.) |
1345 Avenue of the Americas, 33rd Floor
New York, NY |
|
10105 |
(Address of principal executive
offices) |
|
(Zip
Code) |
(212) 201-8533
(Registrant’s
telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☒ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class | |
Trading Symbol(s) | |
Name of each exchange on
which registered |
Units, each consisting of one share of Class A common stock, par value $0.0001 per share, and one-half of one Redeemable Warrant | |
OCAXU | |
The Nasdaq Stock Market LLC |
Class A Common Stock, par value $0.0001 per share, included as part of the Units | |
OCAX | |
The Nasdaq Stock Market LLC |
Redeemable warrants included as part of the Units, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 | |
OCAXW | |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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.
| Item 1.01 | Entry Into a Material Definitive Agreement. |
On December 21, 2023, OCA Acquisition Corp., a
Delaware corporation (“OCA”), entered into an Agreement and Plan of Merger (the “Business Combination
Agreement”), by and among OCA, Powermers Smart Industries, Inc., a Delaware corporation (“PSI”) and POWR
Merger Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of PSI (“Merger Sub”).
PSI is a green-powered innovator at the intersection
of modern engineering, fleet management solutions, and product platforms for the commercial transportation and industrial equipment sectors.
At the closing of the Business Combination (as defined below), the combined company is expected to have a pro forma equity value of
approximately $2 billion.
The Business Combination Agreement and the transactions
contemplated thereby (the “Business Combination”) were approved by the board of directors of OCA (the “OCA
Board”) and PSI. This Current Report on Form 8-K (this “Report”) is being filed to describe the material
terms of the Business Combination Agreement and related agreements, which are filed as exhibits herewith.
The Business Combination Agreement
The Business Combination
Pursuant to the Business Combination Agreement,
upon the closing of the Business Combination (the “Closing”), Merger Sub will merge with and into OCA (the “Merger”),
with OCA being the surviving corporation of such Merger and becoming a wholly-owned subsidiary of PSI.
In connection with the Merger, each (i) share
of Class A common stock of OCA, par value $0.0001 per share (the “OCA Class A Common Stock”), and (ii) share of Class
B common stock of OCA, par value $0.0001 per share (the “OCA Class B Common Stock” and, together with the OCA Class
A Common Stock, the “OCA Common Stock”), issued and outstanding immediately prior to the effective time of the Merger
(the “Effective Time”) will be automatically cancelled and extinguished and converted into the right to receive one
share of common stock of PSI, par value $0.01 per share (“PSI Common Stock”). All shares of OCA Common Stock held in
treasury will be canceled and extinguished without consideration.
At the Effective Time, each whole warrant
issued as part of the units (the “Units”), each consisting of one share of OCA Class A Common Stock and one-half
of one Public Warrant (the “Public Warrants”), sold in OCA’s initial public offering and each whole warrant
issued to OCA Acquisition Holdings LLC (the “Sponsor”) in a private placement simultaneously with the closing of
OCA’s initial public offering (the “Private Placement Warrants” and, together with the Public Warrants, the
“OCA Warrants”) that is outstanding immediately prior to the Effective Time shall remain outstanding but shall be
assumed by PSI and automatically adjusted to become (A) with respect to each Public Warrant, one public warrant of PSI and (B) with
respect to each Private Placement Warrant, one private placement warrant of PSI, each of which shall be subject to substantially the
same terms and conditions applicable prior to such conversion; except that each such warrants shall be exercisable (or will become
exercisable in accordance with its terms) for one share of PSI Common Stock.
Each Unit that is outstanding immediately prior
to the Effective Time will be automatically separated into one share of OCA Class A Common Stock and one-half of one Public Warrant, which
underlying securities will be converted as described above.
Registration Statement
In connection with the Business Combination, OCA
and PSI will prepare and mutually agree upon, and PSI will file with the SEC, a registration statement on Form S-4 (the “Registration
Statement”), which will include a preliminary proxy statement of OCA and a preliminary prospectus of PSI relating to the securities
of PSI to be issued in connection with the Business Combination.
Representations, Warranties and Covenants
The parties to the Business Combination Agreement
have made representations, warranties and covenants that are customary for transactions of this nature. The representations and warranties
of the respective parties to the Business Combination Agreement will not survive the Closing. The covenants of the respective parties
to the Business Combination Agreement will also not survive the Closing, except for those covenants that by their terms expressly apply
in whole or in part after the Closing.
Exclusivity
The Business Combination Agreement contains exclusivity
provisions restricting OCA and PSI from engaging in alternative transactions for a period ending on the earlier of the Closing and the
termination of the Business Combination Agreement in accordance with its terms.
Conditions to Closing
The consummation of the Business Combination is
subject to the satisfaction or waiver of certain customary closing conditions of the respective parties, including, among other things:
(a) the approval and adoption by OCA’s stockholders of the Business Combination, (b) the approval and adoption by PSI’s stockholders
of the Business Combination, (c) the Registration Statement being declared effective under the Securities Act of 1933, as amended (the
“Securities Act”), (d) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (e) the absence of any law or governmental order or other legal restraint or prohibition preventing
the consummation of the Business Combination and (f) the shares of PSI Common Stock to be issued in connection with the Business Combination
having been approved for listing on a national securities exchange.
Termination
The Business Combination Agreement may be terminated
at any time prior to the Closing by mutual written consent of OCA and PSI and in certain other circumstances, including if the Closing
has not occurred on or prior to September 30, 2024 (subject to an automatic extension to October 31, 2024, pursuant to the terms of the
Business Combination Agreement) and the primary cause of the failure for the Closing to have occurred on or prior to such date is not
due to a breach of the Business Combination Agreement by the party seeking to terminate.
The foregoing description of the Business Combination
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Business Combination Agreement,
a copy of which is included as Exhibit 2.1 to this Report and is incorporated herein by reference. The Business Combination Agreement
contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or
other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract
among the respective parties to the Business Combination Agreement and are subject to important qualifications and limitations agreed
to by the contracting parties in connection with negotiating the Business Combination Agreement. The Business Combination Agreement has
been included as Exhibit 2.1 to provide investors with information regarding its terms. It is not intended to provide any other factual
information about OCA or any other party to the Business Combination Agreement. In particular, the representations, warranties, covenants
and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement
and as of specific dates, were solely for the benefit of the respective parties to the Business Combination Agreement, may be subject
to limitations agreed upon by the parties thereto (including being qualified by confidential disclosures made for the purposes of allocating
contractual risk between the respective parties to the Business Combination Agreement instead of establishing these matters as facts)
and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to OCA’s
investors and security holders. OCA’s investors and security holders are not third-party beneficiaries under the Business Combination
Agreement and should not rely on the representations, warranties or covenants of any party to the Business Combination Agreement. Moreover,
information concerning the subject matter of the representations and warranties may change after the date of the Business Combination
Agreement, which subsequent information may or may not be fully reflected in OCA’s public disclosures.
Convertible Note Investment
Concurrently with the execution of the Business
Combination Agreement, Antara Total Return SPAC Master Fund LP, a Cayman Islands exempted limited partnership owning a majority economic,
non-voting interest in the Sponsor (the “Investor”), and PSI entered into a note purchase agreement (the “Note
Purchase Agreement”), pursuant to which, among other things, the Investor agreed to purchase, and PSI agreed to issue and sell
to the Investor, convertible promissory notes in up to an aggregate principal amount of $8,000,000 (the “Convertible Notes”).
Concurrently with the execution of the Note Purchase Agreement, PSI sold and issued, and the Investor purchased, Convertible Notes in
the initial principal amount of $3,000,000. Within ten business days of the receipt of initial comments from the SEC related to the Registration
Statement, PSI will sell and issue, and the Investor will purchase, an additional aggregate principal amount of $5,000,000 of Convertible
Notes. In connection with the closing of the Business Combination, the Convertible Notes will automatically convert into 800,000 shares
of PSI Common Stock.
The foregoing descriptions of the Note Purchase Agreement and
Convertible Note do not purport to be complete and are qualified in their entirety by reference to the full text of the Note Purchase
Agreement and Convertible Note. A copy of the Note Purchase Agreement is included as Exhibit 10.1 to this Report and a copy of the Convertible
Note is included as Exhibit A of the Note Purchase Agreement, each of which are incorporated herein by reference.
PIPE Investment (Private Placement)
Concurrently with the execution and delivery of
the Business Combination Agreement, OCA entered into a subscription agreement (the “Insider Subscription Agreement”)
with the Sponsor.
Pursuant to the Insider Subscription Agreement,
the Sponsor agreed to subscribe for and purchase, and OCA agreed to issue and sell to the Sponsor, immediately prior to the Merger, an
aggregate of 200,000 shares of OCA Class A Common Stock for an aggregate purchase price of $2,000,000 (the “Insider PIPE Investment”).
Upon Closing, each issued and outstanding share of OCA Common Stock will be automatically cancelled, extinguished and converted into the
right to receive one share of PSI Common Stock.
The Insider Subscription Agreement contains customary
conditions to closing, including, among other things, the consummation of the Business Combination. The Insider Subscription Agreement
also provides that OCA will use reasonable best efforts to cause PSI to grant the Sponsor certain customary registration rights.
The foregoing description of the Insider Subscription Agreement does
not purport to be complete and is qualified in its entirety by reference to the full text of the Insider Subscription Agreement,
a copy of which is included as Exhibit 10.2 to this Report and incorporated herein by reference.
PSI Stockholder Support Agreement
Concurrently with the execution and delivery of
the Business Combination Agreement, PSI, OCA and the stockholders of PSI party thereto (the “PSI Stockholders”) have
entered into a Company Stockholder Support Agreement (the “PSI Stockholder Support Agreement”). The PSI Stockholder
Support Agreement provides, among other things, that the PSI Stockholders shall vote all the shares of PSI Common Stock beneficially owned
by them in favor of the Business Combination.
The foregoing description of the PSI Stockholder
Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the PSI Stockholder
Support Agreement, the form of which is included as Exhibit 10.3 to this Report and incorporated herein by reference.
Sponsor Support Agreement
Concurrently with the execution and delivery of
the Business Combination Agreement, the Sponsor, the Investor, OCA, PSI and each of the officers and directors of OCA (the “Insiders”)
have entered into a Sponsor Support Agreement (the “Sponsor Support Agreement”).
The Sponsor Support Agreement provides, among
other things, that (i) the Sponsor and the Investor shall vote all the shares of OCA Common Stock beneficially owned by them in favor
of the proposals to approve the Business Combination and other matters to be voted upon at the special meetings of stockholders of OCA,
(ii) effective as of immediately prior to the Effective Time, the Sponsor shall forfeit and surrender to OCA for cancellation all but
4,500,000 of the Private Placement Warrants held by it (exclusive of any OCA Warrants purchased by the Sponsor in the open market and
warrants described in the immediately following clause (iii)), (iii) effective as of immediately prior to the Effective Time, the Sponsor
shall convert all outstanding loans made to OCA into OCA Warrants and (iv) the Sponsor shall use its best efforts to facilitate identifying
and obtaining commitments from investors for a PIPE investment in an aggregate amount of $10,000,000 in exchange for shares of OCA Class
A Common Stock.
The foregoing description of the Sponsor Support
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sponsor Support Agreement,
a copy of which is included as Exhibit 10.4 to this Report and incorporated herein by reference.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The disclosure
set forth above in Item 1.01 of this Report is incorporated by reference herein. The Convertible Note issued pursuant to the Note Purchase
Agreement and shares of OCA Class A Common Stock to be issued pursuant to the Insider Subscription Agreement have not been registered
under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) thereof.
| Item 7.01 | Regulation FD Disclosure. |
On December 22, 2023, OCA and PSI issued a joint
press release announcing the execution of the Business Combination Agreement. A copy of the press release is furnished herewith as Exhibits
99.1 and incorporated herein by reference.
The foregoing (including Exhibit 99.1) is being
furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will
it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
On December 15,
2023, OCA filed a definitive proxy statement (the “Extension Proxy Statement”) for a special meeting of its stockholders
(the “Stockholder Meeting”) to be held on 9:30 a.m., Eastern time, on January 9, 2024, to seek stockholder approval
to adopt amendments (the “Extension Amendments”) to its amended and restated certificate of incorporation (the “Certificate
of Incorporation”). Given the anticipated timing of the proposed transaction with PSI, OCA believes that it will not, despite
its best efforts, be able to complete the proposed transaction on or before January 20, 2024, the current deadline for OCA to complete
a business combination under the Certificate of Incorporation. The Extension Amendments would (i) extend the date by which OCA has to
complete a business combination up to January 20, 2025 (if all eleven additional monthly extensions are exercised by the Sponsor
and subsequently approved by the OCA Board as described in the Extension Proxy Statement) and (ii) eliminate the limitation that OCA may
not redeem shares of OCA Class A Common Stock to the extent that such redemption would result in OCA having net tangible assets (as determined
in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended), of less than $5,000,001
(the “Redemption Limitation”) in order to allow OCA to redeem shares of OCA Class A Common Stock irrespective of whether
such redemption would exceed the Redemption Limitation.
Additional Information about the Business
Combination and Where to Find It
In connection
with the Business Combination, PSI intends to file the Registration Statement, which will include a preliminary proxy statement of OCA
and a preliminary prospectus of PSI relating to the securities of PSI to be issued in connection with the Business Combination with the
SEC. After the Registration Statement is declared effective, OCA will mail a definitive proxy statement relating to the Business Combination
and other relevant documents to its stockholders. The Registration Statement, including the proxy statement/prospectus contained therein,
when declared effective by the SEC, will contain important information about the Business Combination and the other matters to be voted
upon at a meeting of OCA’s stockholders to be held to approve the Business Combination (and related matters). This Report is not
a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that OCA will send
to its stockholders in connection with the Business Combination. This Report does not contain all the information that should be considered
concerning the Business Combination and other matters and is not intended to provide the basis for any investment decision or any other
decision in respect of such matters. OCA and PSI may also file other documents with the SEC regarding the Business Combination. Investors
and security holders of OCA are advised to read, when available, the proxy statement/prospectus in connection with OCA’s solicitation
of proxies for its special meetings of stockholders to be held to approve the Business Combination (and related matters) and other documents
filed in connection with the Business Combination, as these materials will contain important information about OCA, PSI and the Business
Combination.
When available,
the definitive proxy statement and other relevant materials for the Business Combination will be mailed to stockholders of OCA as of a
record date to be established for voting on the Business Combination. OCA’s stockholders will also be able to obtain copies of the
preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed or that will be filed with
the SEC by OCA through the website maintained by the SEC at www.sec.gov, or by directing a request to OCA Acquisition Corp., 1345 Avenue
of the Americas, 33rd Floor, New York, NY 10105 or by telephone at (212) 201-8533.
Participants in the Solicitation of Proxies
OCA, PSI and
their respective directors and officers may be deemed participants in the solicitation of proxies of stockholders of OCA in connection
with the Business Combination. OCA’s security holders and other interested persons may obtain, without charge, more detailed information
regarding the directors and officers of OCA. A description of their interests in OCA is contained in OCA’s final prospectus related
to its initial public offering, dated January 19, 2021, and in OCA’s subsequent filings with the SEC. Information regarding the
persons who may, under SEC rules, be deemed participants in the solicitation of proxies of OCA’s security holders in connection
with the Business Combination and other matters to be voted upon at the special meetings of stockholders of OCA will be set forth in the
Registration Statement for the Business Combination when available. Additional information regarding the interests of participants in
the solicitation of proxies in connection with the Business Combination will be included in the Registration Statement that PSI intends
to file with the SEC. You may obtain free copies of these documents as described in the preceding paragraph.
INVESTMENT IN
ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY
PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
No Offer or Solicitation
This
Report relates to a proposed business combination between OCA and PSI and the proposed Extension Amendments. This Report does not constitute an offer to sell or
exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the
securities laws of any such jurisdiction. This Report does not constitute a solicitation of a proxy, consent or authorization with
respect to any securities or in respect of the proposed Business Combination or Extension Amendments.
Forward-Looking Statements
Certain statements
contained in this Report that are not historical facts are forward-looking statements. Forward-looking statements are often accompanied
by words such as “believe,” “may”, “will”, “estimate”, “continue”, “expect”,
“intend”, “should”, “plan”, “forecast”, “potential”, “seek”, “future”,
“look ahead”, “target”, “design”, “develop”, “aim” and similar expressions
to predict or indicate future events or trends, although not all forward-looking statements contain these words. Forward-looking statements
generally relate to future events or OCA’s or PSI’s future financial or operating performance, including possible or assumed
future results of operations, business strategies, debt levels, competitive position, industry environment, potential growth opportunities,
the effects of regulation, the satisfaction of closing conditions to the Business Combination and related transactions, the level of redemptions
by OCA’s public stockholders and the timing of the completion of the Business Combination, including the anticipated closing date
of the Business Combination and the use of the cash proceeds therefrom. For example, statements regarding anticipated growth in the industry
in which PSI operates and anticipated growth in demand for PSI’s products, projections of PSI’s future financial results,
including future possible growth opportunities for PSI and other metrics are forward-looking statements. These forward-looking statements
also include, but are not limited to, statements regarding the use of PSI’s technology in pursuit of a carbon neutral future, the
development and utilization of the PSI’s technologies in various sectors, licensing and other transactions with manufacturing partners
and other third parties, estimates and forecasts of other financial and performance indicators and predictions of market opportunities.
These statements are based on various assumptions (whether or not identified in this Report) and the current expectations of OCA and PSI
management, and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only
and are not intended to serve as and must not be relied on by any investor as a guarantee, an assurance, a prediction or a definitive
statement of fact or probability. Actual events and situations are difficult or impossible to predict and may differ from assumptions.
Many actual events and situations are beyond the control of OCA and PSI.
These forward-looking
statements are subject to a variety of risks, uncertainties and other factors, including (i) the occurrence of any event, change or other
circumstances that could give rise to the termination of negotiations and any subsequent definitive agreements with respect to the Business
Combination; (ii) the outcome of any legal proceedings that may be instituted against OCA, PSI or others following this announcement and
any definitive agreements with respect thereto; (iii) the inability to complete the Business Combination due to the failure to obtain
approval of the stockholders of OCA and of PSI, to obtain financing to complete the Business Combination, or to satisfy other conditions
to closing; (iv) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable
laws or regulations or as a condition to obtaining regulatory approval of the Business Combination; (v) the ability to meet stock exchange
listing standards in connection with, or following the consummation of, the Business Combination; (vi) the risk that the announcement
and consummation of the Business Combination disrupts current plans and operations of PSI; (vii) the ability to recognize the anticipated
benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the combined company to
grow and manage growth profitably, maintain key relationships and retain its management and key employees; (viii) costs related to the
Business Combination; (ix) changes in applicable laws or regulations; (x) the inability to develop or monetize PSI’s technologies
in a timely or successful manner; (xi) PSI’s ability to enter into licensing, manufacturing and other agreements with third parties
on satisfactory terms; (xii) the changes in domestic and foreign business, market, financial, political and legal conditions; (xiii) risks
related to domestic and international political and macroeconomic uncertainty, including the conflicts between Russia and Ukraine and
Israel and Hamas; (xiv) the amount of redemption requests made by OCA’s public stockholders; (xv) risks related to the launch of
the PSI business and the timing of expected business milestones; (xvi) the impact of competition on PSI future business; and (xvii) other
risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking
Statements” in OCA’s final prospectus relating to its initial public offering, dated January 19, 2021, OCA’s Annual
Report on Form 10-K for the year ended December 31, 2022 and subsequent Quarterly Reports on Form 10-Q, in each case, under the heading
“Risk Factors,” and other documents to be filed by OCA and PSI with the SEC, including the proxy statement/prospectus. There
may be additional risks that neither OCA nor PSI presently know or that OCA and PSI currently believe are immaterial that could also cause
actual results to differ from those contained in the forward-looking statements. If any of these risks become a reality, or if our assumptions
prove to be incorrect, the actual results may differ materially from the results implied by these forward-looking statements. In addition,
forward-looking statements reflect the expectations, plans, or forecasts of future events and opinions of OCA or PSI, as applicable, on
the date of this Report. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made.
OCA and PSI expect that subsequent events and developments will cause the assessments of OCA and PSI to change. Neither OCA nor PSI undertakes
any duty to update or revise these forward-looking statements or to inform the viewer of any matters of which any of them becomes aware
of which may affect any matter referred to in this Report. If OCA and PSI do update one or more forward looking statements, no inference
should be drawn that OCA and PSI will make additional updates thereto or with respect to other forward-looking statements. These forward-looking
statements should not be relied upon as representing OCA’s and PSI’s assessments as of any date subsequent to the date of
this filing. You should consult with their professional advisors to make their own determinations and should not rely on the forward-looking
statements in this Report.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. The following exhibits are provided as part
of this Report: |
Exhibit No. | |
Description |
2.1† | |
Business Combination Agreement, dated as of December 21, 2023, by and among OCA Acquisition Corp., POWR Merger Sub, LLC, and Powermers Smart Industries, Inc. |
10.1† | |
Note Purchase Agreement, dated as of December 21, 2023, by and between Antara Capital Total Return SPAC Master Fund LP and Powermers Smart Industries, Inc. |
10.2 | |
Subscription Agreement, dated as of December 21, 2023, by and between OCA Acquisition Corp. and OCA Acquisition Holdings LLC. |
10.3 | |
Form of Company Stockholder Support Agreement. |
10.4 | |
Sponsor Support Agreement, dated as of December 21, 2023 by and among OCA Acquisition Corp., OCA Acquisition Holdings LLC, Powermers Smart Industries, Inc., Antara Total Return SPAC Master Fund LP and the insiders party thereto. |
99.1 | |
Press Release, dated December 22, 2023. |
104 | |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| † | Certain of the exhibits and schedules to this exhibit have been
omitted in accordance with Regulation S-K Item 601(b)(2). OCA agrees to furnish supplementally a copy of all omitted exhibits and schedules
to the SEC upon its request. |
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.
Dated: December 22, 2023 | OCA ACQUISITION CORP. |
| |
|
| By: |
/s/ David Shen |
| Name: |
David Shen |
| Title: |
Chief Executive Officer and President |
8
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER
by
and among
OCA
ACQUISITION CORP.,
POWR
MERGER SUB, LLC,
and
POWERMERS
SMART INDUSTRIES, INC.
dated
as of
December
21, 2023
TABLE
OF CONTENTS
|
Page |
|
|
Article
I Certain Definitions |
3 |
|
|
|
|
Section
1.01 |
Definitions |
3 |
|
Section 1.02 |
Construction |
14 |
|
Section 1.03 |
Equitable Adjustments |
15 |
|
Section 1.04 |
Knowledge |
15 |
|
|
|
|
Article
II The Merger |
15 |
|
|
|
Section 2.01 |
The Merger |
15 |
|
Section 2.02 |
Effective Time of Merger |
16 |
|
Section 2.03 |
Effect of the Merger |
16 |
|
Section 2.04 |
Governing Documents |
16 |
|
Section 2.05 |
Directors and Officers |
16 |
|
Section 2.06 |
Further Assurances |
16 |
|
|
|
|
Article
III Merger Consideration; Closing |
16 |
|
|
|
Section 3.01 |
Effect of the Merger
on Acquiror Common Stock |
16 |
|
Section 3.02 |
Closing |
17 |
|
Section 3.03 |
Withholding Rights |
17 |
|
|
|
|
Article
IV Representations and Warranties of the Company PARTIES |
18 |
|
|
|
Section 4.01 |
Corporate Organization
of the Company |
18 |
|
Section 4.02 |
Subsidiaries |
18 |
|
Section 4.03 |
Due Authorization |
18 |
|
Section 4.04 |
No Conflict |
19 |
|
Section 4.05 |
Governmental Authorities;
Consents |
19 |
|
Section 4.06 |
Capitalization |
19 |
|
Section 4.07 |
Capitalization of Subsidiaries |
20 |
|
Section 4.08 |
Financial Statements |
21 |
|
Section 4.09 |
Absence of Certain Changes |
22 |
|
Section 4.10 |
Undisclosed Liabilities |
22 |
|
Section 4.11 |
Litigation and Proceedings |
22 |
|
Section 4.12 |
Compliance with Laws |
22 |
|
Section 4.13 |
Contracts; No Defaults |
23 |
|
Section 4.14 |
Company Benefit Plans |
25 |
|
Section 4.15 |
Labor Matters |
27 |
|
Section 4.16 |
Taxes |
29 |
|
Section 4.17 |
Insurance |
30 |
|
Section 4.18 |
Real Property |
31 |
|
Section 4.19 |
Intellectual Property
and IT Security |
32 |
|
Section 4.20 |
Environmental Matters |
34 |
|
Section 4.21 |
Brokers’ Fees |
35 |
|
Section 4.22 |
Related Party Transactions |
35 |
|
Section 4.23 |
International Trade;
Anti-Corruption |
35 |
|
Section 4.24 |
Top Customers and Top
Suppliers |
36 |
|
Section 4.25 |
Acquisitions and Acquisition
Contracts |
37 |
|
Section 4.26 |
Personal Property |
37 |
|
Section 4.27 |
Condition of Assets |
37 |
|
Section
4.28 |
Restrictions
on Business Activities |
37 |
|
Section 4.29 |
Certain Provided Information |
37 |
|
Section 4.30 |
Stock Issued in Transactions |
38 |
|
Section 4.31 |
No Other Representations |
38 |
|
|
|
|
Article
V Representations and Warranties of Acquiror |
38 |
|
|
|
Section 5.01 |
Corporate Organization |
38 |
|
Section 5.02 |
Subsidiaries |
38 |
|
Section 5.03 |
Due Authorization |
39 |
|
Section 5.04 |
No Conflict |
39 |
|
Section 5.05 |
Compliance |
40 |
|
Section 5.06 |
Litigation and Proceedings |
40 |
|
Section 5.07 |
Governmental Authorities;
Consents |
40 |
|
Section 5.08 |
Trust Account |
40 |
|
Section 5.09 |
Real Property; Personal
Property |
41 |
|
Section 5.10 |
Intellectual Property |
41 |
|
Section 5.11 |
Brokers’ Fees |
41 |
|
Section 5.12 |
SEC Reports; Financial
Statements; Sarbanes-Oxley Act; Undisclosed Liabilities |
41 |
|
Section 5.13 |
Business Activities |
42 |
|
Section 5.14 |
Taxes |
43 |
|
Section 5.15 |
Employees; Employee
Benefit Plans |
45 |
|
Section 5.16 |
Contracts |
45 |
|
Section 5.17 |
Capitalization |
45 |
|
Section 5.18 |
NASDAQ Stock Market
Listing |
46 |
|
Section 5.19 |
Related Party Transactions |
46 |
|
Section 5.20 |
Investment Company Act;
JOBS Act |
46 |
|
Section 5.21 |
Absence of Changes |
46 |
|
Section 5.22 |
Restrictions on Business
Activities |
46 |
|
Section 5.23 |
Certain Provided Information |
47 |
|
Section 5.24 |
No Other Representations |
47 |
|
|
|
|
Article
VI Covenants of the Company PARTIES |
47 |
|
|
|
Section 6.01 |
Conduct of Business |
47 |
|
Section 6.02 |
Inspection |
51 |
|
Section 6.03 |
No Claim Against the
Trust Account |
51 |
|
Section 6.04 |
Preparation and Delivery
of Additional Company Financial Statements |
52 |
|
Section 6.05 |
FIRPTA |
52 |
|
Section 6.06 |
No Acquiror Stock Transactions |
52 |
|
Section 6.07 |
Repayment of Employee
Loans |
52 |
|
Section 6.08 |
Notification |
53 |
|
Section 6.09 |
Company Stockholder
Approval |
53 |
|
Section 6.10 |
Performance of Material
Contracts of PRC Subsidiaries |
53 |
|
Section 6.11 |
Transfer of Intellectual
Property to PRC Subsidiaries |
54 |
|
Section 6.12 |
Indemnification and
Directors’ and Officers’ Insurance |
54 |
|
Section 6.13 |
Section 16 Matters |
55 |
|
Section 6.14 |
Incentive Equity Plan |
55 |
|
Section 6.15 |
Company Preferred Equity
Financing |
55 |
Article
VII Covenants Of Acquiror |
55 |
|
|
|
Section
7.01 |
Conduct
of Acquiror During the Interim Period |
55 |
|
Section 7.02 |
Trust Account Proceeds |
56 |
|
Section 7.03 |
Inspection |
57 |
|
Section 7.04 |
Acquiror Public Filings |
57 |
|
Section 7.05 |
Acquiror Board Recommendation |
57 |
|
Section 7.06 |
Underwriting Commission
Reduction |
57 |
|
Section 7.07 |
Extension of Time to
Consummate a Business Combination |
57 |
|
|
|
Article
VIII Joint Covenants |
59 |
|
|
|
Section 8.01 |
Efforts to Consummate |
59 |
|
Section 8.02 |
Registration Statement;
Proxy Statement; Special Meeting |
61 |
|
Section 8.03 |
Exclusivity |
63 |
|
Section 8.04 |
Tax Matters |
64 |
|
Section 8.05 |
Confidentiality; Publicity |
65 |
|
Section 8.06 |
Post-Closing Directors
and Officers |
65 |
|
Section 8.07 |
PIPE Investment |
66 |
|
Section 8.08 |
Stock Exchange Listing |
66 |
|
Section 8.09 |
Sponsor Investment Adjustment |
66 |
|
|
|
Article
IX Conditions to Obligations |
67 |
|
|
|
Section 9.01 |
Conditions to Obligations
of All Parties |
67 |
|
Section 9.02 |
Additional Conditions
to Obligations of Acquiror |
67 |
|
Section 9.03 |
Additional Conditions
to the Obligations of the Company |
69 |
|
|
|
Article
X Termination/Effectiveness |
70 |
|
|
|
Section 10.01 |
Termination |
70 |
|
Section 10.02 |
Effect of Termination |
71 |
|
|
|
Article
XI Miscellaneous |
71 |
|
|
|
Section 11.01 |
Waiver |
71 |
|
Section 11.02 |
Notices |
72 |
|
Section 11.03 |
Assignment |
72 |
|
Section 11.04 |
Rights of Third Parties |
72 |
|
Section 11.05 |
Expenses |
73 |
|
Section 11.06 |
Governing Law |
73 |
|
Section 11.07 |
Captions; Counterparts |
73 |
|
Section 11.08 |
Schedules and Exhibits |
73 |
|
Section 11.09 |
Entire Agreement |
73 |
|
Section 11.10 |
Amendments |
73 |
|
Section 11.11 |
Severability |
73 |
|
Section 11.12 |
Jurisdiction; WAIVER
OF TRIAL BY JURY |
73 |
|
Section 11.13 |
Enforcement |
74 |
|
Section 11.14 |
Non-Recourse |
74 |
|
Section 11.15 |
Non-Survival |
74 |
|
Section 11.16 |
Non-Reliance |
75 |
|
Section 11.17 |
Waiver of Conflicts
Regarding Representations; Non-Assertion of Attorney-Client Privilege |
76 |
|
Section 11.18 |
Currency |
77 |
Exhibits and Schedules |
|
|
|
|
Exhibit A |
– |
Note Purchase Agreement |
Exhibit B |
– |
Sponsor Support Agreement |
Exhibit C |
– |
Company Stockholders Support Agreement |
Exhibit D |
– |
Insider Subscription Agreements |
Exhibit E |
– |
Pro Forma Capitalization |
|
|
|
Schedule 1.01(a) |
– |
Liens |
Schedule 1.01(b) |
– |
Permitted Payments |
Schedule 1.04(a) |
– |
Knowledge of the Company Parties |
Schedule 1.04(b) |
– |
Knowledge of the Acquirer |
Schedule 4.02 |
– |
Subsidiaries |
Schedule 4.04 |
– |
No Conflict |
Schedule 4.05 |
– |
Governmental Authorities |
Schedule 4.06(a) |
– |
Authorized Capital Stock of Company |
Schedule 4.06(c) |
– |
Equity Securities of the Company |
Schedule 4.07(c) |
– |
Equity Securities in any Person |
Schedule 4.08 |
– |
Financial Statements |
Schedule 4.09 |
– |
Absence of Certain Changes |
Schedule 4.11 |
– |
Litigation and Proceedings |
Schedule 4.13(a) |
– |
Contracts |
Schedule 4.14 |
– |
Company Benefit Plan |
Schedule 4.17 |
– |
Insurance Policies |
Schedule 4.18(a) |
– |
Real Property |
Schedule 4.19(a) |
– |
Intellectual Property Registrations |
Schedule 4.19(b) |
– |
Exceptions to Intellectual Property Registrations |
Schedule 4.21 |
– |
Brokers’ Fees |
Schedule 4.22 |
– |
Contracts |
Schedule 4.24(a) |
– |
Top Customers |
Schedule 4.24(b) |
– |
Top Suppliers |
Schedule 4.25(a) |
– |
Acquisitions and Acquisition Contracts |
Schedule 4.25(b) |
– |
Earnouts |
Schedule 4.28 |
– |
Restrictions on Business Activities |
Schedule 5.02 |
– |
Subsidiaries |
Schedule 5.03(b) |
– |
Acquiror Stockholder Matters |
Schedule 5.07 |
– |
Governmental Authorities |
Schedule 5.11 |
– |
Brokers’ Fees |
Schedule 5.13(c) |
– |
Other Transaction Agreements |
Schedule 5.13(d) |
– |
No Liabilities |
Schedule 5.16 |
– |
Contracts |
Schedule 5.17(a) |
– |
Equity Securities Outstanding |
Schedule 5.17(a)(i) |
– |
Issued and Outstanding Acquiror Equity Securities &
Warrants |
Schedule 5.17(a)(ii) |
– |
Acquiror Preferred Stock |
Schedule 5.22 |
– |
Restrictions on Business Activities |
Schedule 6.01 |
– |
Conduct of Business |
Schedule 6.01(q) |
– |
Company’s Annual Capital Expenditures |
Schedule 6.07 |
– |
Repayment of Employee Loans |
Schedule 7.01 |
– |
Conduct of Acquiror During the Interim Period |
Schedule 8.01(a) |
– |
Competition Authorities – Jurisdictions |
Schedule 8.06 |
– |
Post-Closing Directors and Officers |
Schedule 9.02(f) |
– |
Assignment and Transfer of Material Contracts to PRC
Subsidiaries |
Schedule 9.02(h) |
– |
Consummation of Acquisitions |
Schedule 9.02(i) |
– |
Legal Title to Real Property |
Schedule 10.01(c) |
– |
Governmental Authorities |
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into
as of December 21, 2023, by and among OCA Acquisition Corp., a Delaware corporation (“Acquiror”),
Powermers Smart Industries, Inc., a Delaware corporation (the “Company”),
and POWR Merger Sub, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Merger
Sub” and together with the Company, the “Company Parties” and each of the Company and Merger Sub
a “Company Party”). Acquiror, Merger Sub and the Company are collectively referred to herein as the “Parties”
and individually as a “Party.”
RECITALS
WHEREAS,
Acquiror is a blank check company incorporated in Delaware and formed to acquire one or more operating businesses through a Business
Combination (as defined below);
WHEREAS,
the Company owns 100% of the issued and outstanding limited liability company interests of Merger Sub;
WHEREAS,
prior to the Closing Date, the Company shall have taken all necessary corporate action to effectuate a restructuring (“Company
Restructuring”) of its outstanding Company Common Stock (as defined below) to reflect the ownership set forth on Schedule 4.06
and thereafter to effectuate a stock split, such that on the Closing Date and prior to the Effective Time, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time will convert into a number of newly issued shares of Company
Common Stock as determined in accordance with Schedule A (the “Stock Split”);
WHEREAS,
on the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware
(the “DGCL”) and the Limited Liability Company Act of the State of Delaware
(the “DLLCA”), on the Closing Date, immediately following the consummation
of the Stock Split, Merger Sub will merge with and into Acquiror (the “Merger”),
with Acquiror being the surviving corporation of the Merger (Acquiror, as the surviving corporation of the Merger, is sometimes referred
to herein as the “Surviving Acquisition Entity”) and each share of Acquiror
Common Stock shall convert into one share of Company Common Stock;
WHEREAS,
for U.S. federal income tax purposes (and for purposes of any applicable state or local income tax that follows the U.S. federal income
tax treatment), each of the Parties intends that (A) the Stock Split will constitute a transaction that qualifies as a “reorganization”
within the meaning of Section 368(a) of the Code to which each of Acquiror and the Company, as applicable, are parties under
Section 368(b) of the Code, and that this Agreement be, and hereby is, adopted as a separate “plan of reorganization”
within the meaning of Section 368 of the Code and the Treasury Regulations for the Stock Split, and (B) the Merger, together with
the Stock Split and the Note Conversion, be treated as an exchange described in Section 351(a) of the Code;
WHEREAS,
the board of directors of Acquiror has unanimously (i) determined that it is in the best interests of Acquiror and its stockholders,
and declared it advisable, to enter into this Agreement, (ii) approved this Agreement and the Transactions (as defined below), including
the Merger, in accordance with the DGCL, on the terms and subject to the conditions of this Agreement, (iii) determined that the
fair market value of the Company is equal to at least 80% of the balance in the Trust Account (as defined below) not including deferred
underwriting discounts and commissions, and (iv) adopted a resolution recommending to its stockholders the approval of the Acquiror
Stockholder Matters (as defined below) (the “Acquiror Board Recommendation”);
WHEREAS,
the Company, as the sole member of Merger Sub, has approved this Agreement and the Transactions, including the Merger;
WHEREAS,
the board of directors of the Company has (i) determined that it is in the best interests of the Company and its stockholders, and
declared it advisable, to enter into this Agreement, (ii) approved this Agreement and the Transactions, including the Merger, in
accordance with the DGCL and the DLLCA, on the terms and subject to the conditions of this Agreement, and (iii) adopted a resolution
recommending this Agreement and the Transactions, including the Merger, be adopted and approved by the stockholders of the Company (the
“Company Stockholders”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, Sponsor (as defined below), certain Affiliates of the Sponsor (the “Sponsor
Affiliate Investors”) and the Company have executed and delivered the Note Purchase Agreement attached hereto as Exhibit A (the
“Note Purchase Agreement”), which provides, among other things, that the
Sponsor and the Sponsor Affiliate Investors shall make an investment in the aggregate amount of $8,000,000 (the “Convertible
Note Investment”), with $3,000,000 funded on the date hereof and $5,000,000 funded within 10 business days of the receipt
of initial comments from the SEC related to the filing of the Registration Statement, into the Company pursuant to convertible promissory
notes (the “Convertible Notes”), and pursuant to the terms and conditions
thereof, the Convertible Notes, to the extent outstanding as of immediately prior to the Effective Time, shall convert into shares of
Company Common Stock after the consummation of the Stock Split and immediately prior to the Effective Time (the “Note Conversion”);
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Sponsor Affiliate Investors and Acquiror have executed and delivered
the subscription agreements, substantially in the form attached hereto as Exhibit D (the “Insider
Subscription Agreements”), pursuant to which, among other things, the Sponsor and the Sponsor Affiliate Investors agree
to subscribe for and accept, and the Acquiror is agreeing to issue in the aggregate to the Sponsor and the Sponsor Affiliate Investors,
on the Closing Date (immediately prior to the Effective Time), 200,000 shares of Acquiror Class A Common Stock in exchange for a subscription
price of $10.00 per share of Acquiror Class A Common Stock, for an aggregate investment amount of $2,000,000 (the “Insider
PIPE Investment” and, together with the Convertible Note Investment, the “Investment”),
on the terms and subject to the conditions set forth in the Insider Subscription Agreements;
WHEREAS,
concurrently with the execution and delivery of this Agreement, the Sponsor, the Sponsor Affiliate Investors, the Acquiror and the Company
have executed and delivered the Sponsor Support Agreement attached hereto as Exhibit B (the “Sponsor
Support Agreement”), which provides, among other things, that (i) the Sponsor and the Sponsor Affiliate Investors
shall vote all the shares of Acquiror Common Stock beneficially owned by them in favor of the Acquiror Stockholder Matters and the Extension
Proposal (as defined below), (ii) effective as of immediately prior to the Effective Time, the Sponsor shall forfeit and surrender to
Acquiror for cancellation all but 4,500,000 of the Acquiror Warrants then held by it (exclusive of any Acquiror Warrants purchased by
the Sponsor in the open market and warrants described in the immediately following clause (iii)), (iii) effective as of immediately
prior to the Effective Time, the Sponsor shall convert all outstanding loans made to Acquiror into warrants to purchase Acquiror Class
A Common Stock; (iv) the Sponsor shall be responsible for any necessary capital
contributions, stockholder inducements or other incentives necessary to effectuate the Extension
Proposal, and (v) the Sponsor shall use its best efforts to facilitate the PIPE Investment (as defined below);
WHEREAS,
concurrently with the execution and delivery of this Agreement, certain of the Company Stockholders, Acquiror and the Company have executed
and delivered the Company Stockholder Support Agreement attached hereto as Exhibit C (the “Company
Stockholders Support Agreement”), providing that, among other things, such Company Stockholders will vote their shares
of Company Common Stock in favor of this Agreement, the Merger and the
other Transactions contemplated by this Agreement;
WHEREAS,
in connection with the consummation of the Merger, the Company, certain of the Company Stockholders, Sponsor, the Sponsor Affiliate Investors
and certain other Persons shall enter into a registration rights agreement substantially in the form to be agreed by the Parties (the
“Registration Rights Agreement”), pursuant to which, among other things,
the Company Stockholders, Sponsor, the Sponsor Affiliate Investors and certain other Persons will be granted certain registration rights
with respect to their respective shares of Company Common Stock; and
WHEREAS,
in connection with the consummation of the Merger, Acquiror, Sponsor, certain of the Company Stockholders and certain other Persons will
enter into a lockup agreement in the form to be agreed by the Parties (the “Lockup Agreement”).
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this
Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, the Parties hereby agree as follows:
Article
I
Certain Definitions
Section
1.01 Definitions. For purposes of this Agreement, the following capitalized terms have the following meanings:
“Acquiror
Class A Common Stock” means the Class A common stock, par value $0.0001 per share, of Acquiror.
“Acquiror
Class B Common Stock” means the Class B common stock, par value $0.0001 per share, of Acquiror.
“Acquiror
Common Stock” means the Acquiror Class A Common Stock and the Acquiror Class B Common Stock.
“Acquiror
Material Adverse Effect” means any change, event, occurrence, effect or circumstance that, individually or in the aggregate,
would or would reasonably be expected to (i) prevent, materially delay or materially impede the performance by Acquiror of its obligations
under this Agreement or the other Transaction Agreements or the consummation of the transactions contemplated hereby or thereby, or (ii)
otherwise have a material adverse effect on the Transactions or on the Company and its Subsidiaries, taken as a whole, after the Closing;
provided, however, that none of
the the matters (or the effects of any of them) described in clauses (a) through
(j) of the definition of Company Material Adverse Effect (which shall apply as to Acquiror, mutatis mutandis),
alone or in combination, shall be deemed to constitute, or be taken into account in determining whether there has been or will be, an
Acquiror Material Adverse Effect with respect to clause (ii) above, except, in the case of clauses (a),
(b), (c), (g) or (h) thereof, if any such change, event or effect has a disproportionate and adverse effect on Acquiror relative to other
similarly situated blank check companies.
“Acquiror
Organizational Documents” means Acquiror’s Certificate of Incorporation and bylaws, each as amended.
“Acquiror
Stockholder Matters” means (i) the adoption and approval of this Agreement and the Transactions, including the
Merger, (ii) the approval of the issuance of the Acquiror Class A Common Stock in connection with the Insider PIPE Investment (and, if
applicable, the PIPE Investment) as required by Nasdaq listing requirements; (iii) the adoption and approval of each other proposal
that the SEC or the applicable Stock Exchange (or the respective staff members thereof) indicates is necessary in its comments to the
Registration Statement and Proxy Statement or in correspondence related thereto; (iv) the adoption and approval of each other
proposal reasonably agreed to by Acquiror and the Company as necessary or appropriate in connection with the consummation of the transactions
contemplated by this Agreement or the Transaction Agreements, and (v) the adoption and approval of a proposal for the adjournment
of the Special Meeting if additional time is necessary to consummate the Transactions for any reason, including, for avoidance of doubt,
to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing, or to allow
reasonable time for the board of directors of Acquiror to accept reversals of elections to redeem shares of Acquiror Class A Common Stock
by the Acquiror Stockholders (as defined below), provided that a Special Meeting is reconvened as promptly as practical thereafter.
“Acquiror
Stockholder Redemption” means the redemption of Acquiror Class A Common Stock in accordance with the terms of the Acquiror
Organizational Documents.
“Acquiror
Transaction Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other
amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to the Company pursuant to the
terms of this Agreement or any other Transaction Document) by, Acquiror and/or Sponsor in connection with the negotiation, preparation
or execution of this Agreement or any other Transaction Document, the performance of its covenants or agreements in this Agreement or
any other Transaction Document or the consummation of the Transactions, including (a) the fees and expenses of outside legal counsel,
accountants, advisors, brokers, investment bankers, consultants, placement agents or other agents or service providers of Acquiror and/or
Sponsor, (b) 100% of any filing fees related to the Registration Statement and Proxy Statement, and any fees relating to any filings
under Competition Laws (including HSR) or Investment Screening Laws, (c) 100% of any filing
fees, legal fees and disbursements, accountings fees, and other costs, and expenses related to
the Extension Proxy Statement and (d) any other fees, expenses, commissions or other amounts that are expressly allocated to Acquiror
pursuant to this Agreement or any other Transaction Document. Notwithstanding the foregoing or anything to the contrary herein, Acquiror
Transaction Expenses shall not include any Company Transaction Expenses.
“Acquiror
Warrant” means each warrant to purchase one share of Acquiror Class A Common Stock at an exercise price of $11.50 per
share, subject to adjustment in accordance with the Warrant Agreement.
“Action”
means any action, suit, complaint, demand, claim, charge, citation, notice of violation, audit, arbitration or other legal, judicial,
regulatory or administrative proceeding (whether at law or in equity) by or before any Governmental Authority. References to “Action”
shall include any inquiry or investigation.
“Affiliate”
means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common
control with, such specified Person, through one or more intermediaries or otherwise. The term “control” means the ownership
of a majority of the voting securities of the applicable Person or the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of the applicable Person, whether through ownership of voting securities, by contract
or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto; provided
that, in no event shall the Company or any of its Subsidiaries be considered an Affiliate of any Portfolio Company of any Company Stockholder
(other than the Company and its Subsidiaries) nor of any investment fund
of any Company Stockholder nor shall any such portfolio company (other than the Company and its Subsidiaries) of any such investment
fund be considered an Affiliate of the Company or any of its Subsidiaries.
“Affiliate
Agreement” means any Contract between the Company or any of its Subsidiaries, on the one hand, and any Affiliate, present
or former stockholder of the Company, officer or director of the Company or its Subsidiaries, on the other hand, except in each case,
for (i) Contracts for employment or fringe benefits or otherwise for compensation paid to directors, officers, employees and consultants
consistent with previously established policies, (ii) Contracts for reimbursement of expenses incurred by directors, officers, employees
and consultants in connection with their employment or service, (iii) Company Benefit Plans and Contracts entered into pursuant
to Company Benefit Plans, and (iv) Contracts with Portfolio Companies, including, in each case, any Contract disclosed, or that
should have been disclosed, on Schedule 4.22.
“Anti-Corruption
Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act of 2010, and any
other applicable U.S. and non-U.S. Laws relating to the prevention of corruption or bribery, and (b) the Money Laundering Control
Act of 1986 (18 U.S.C. §§ 1956-1957), the USA PATRIOT Act (Pub. L. No. 107-56), and the Bank Secrecy Act (31 U.S.C.
§§ 5311-5332), the UK Proceeds of Crime Act 2002, the UK Terrorism Act 2000, and any other applicable U.S. and non-U.S.
Laws related to terrorist financing or money laundering, including financial recordkeeping and reporting requirements mandated by such
Laws.
“BIS”
means the U.S. Department of Commerce’s Bureau of Industry and Security.
“Business
Combination” has the meaning ascribed to such term in the Certificate of Incorporation.
“Business
Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized
or required by Law to close.
“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, as well as any related sections
of such statute, and any regulations promulgated thereunder or requirements of the United States Small Business Administration, the United
States Department of Treasury or the Federal Reserve with respect to such act, in each case as any may be further amended, and the related
Paycheck Protection Program and Healthcare Enhancement Act of 2020 and Paycheck Protection Program Flexibility Act of 2020.
“Certificate
of Incorporation” means the Amended and Restated Certificate of Incorporation of Acquiror, as in effect on the date
hereof.
“Closing
Per Share Stock Consideration” means one share of Company Common Stock.
“Code”
means the Internal Revenue Code of 1986.
“Company
Common Stock” means the common stock, par value $0.01 per share, of the Company.
“Company
Material Adverse Effect” means any change, event, occurrence, effect or circumstance whether known or unknown as of
the date hereof, that, individually or in the aggregate, (i) would prevent, delay, impair or materially impede the ability of the
Company to consummate the Merger or (ii) would or reasonably would be expected to have a materially adverse effect on the business,
financial condition or results of operations of Company and its Subsidiaries (taken as a whole); provided, however, that
in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to
constitute, or be taken into account in determining whether there has been or will be, a “Company
Material Adverse Effect” on or in respect of the Company and its Subsidiaries under clause (ii) of this definition:
(a) any change in Law, regulatory policies, accounting standards or principles (including GAAP) or any guidance relating thereto
or interpretation thereof after the date of this Agreement; (b) any change in interest rates or economic, political, business or
financial market conditions generally (including any changes in credit, financial, commodities, securities or banking markets); (c) any
change affecting any of the industries in which the Company and its Subsidiaries operate or the economy as a whole; (d) any epidemic,
pandemic or disease outbreak, or any Law, directive, guidelines or recommendations issued by a Governmental Authority, the Centers for
Disease Control and Prevention or the World Health Organization providing for business closures, “sheltering-in-place,” curfews
or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak; (e) the announcement or the execution
of this Agreement, the pendency of the Transactions, or the performance of this Agreement, including losses or threatened losses of customers,
suppliers, vendors, distributors or others having relationships with the Company and its Subsidiaries resulting therefrom; (f) any
action taken or not taken at the written request of Acquiror; (g) any weather conditions, earthquake, hurricane, tsunami, tornado,
flood, mudslide, wild fire or other natural disaster, act of God or other force majeure event; (h) any acts of terrorism, sabotage,
war, riot, the outbreak or escalation of hostilities, or change in geopolitical conditions; (i) any failure of the Company or its
Subsidiaries to meet, with respect to any period or periods, any internal or industry analyst projections, forecasts, estimates or business
plans (provided, however, that this clause (i) shall not prevent a determination that any change or effect underlying
such failure to meet projections or forecasts has resulted in a Company Material Adverse Effect (to the extent such change or effect
is not otherwise excluded from this definition of Company Material Adverse Effect)); (j) any action taken by Acquiror, the Sponsor
or any of their respective Affiliates; or (k) any matter to which Acquiror has consented in writing; except, in the case of clauses (a),
(b), (c), (g) or (h) above, if any such change, event or effect has a disproportionate and adverse effect on the Company and its Subsidiaries
relative to other similarly situated businesses in the industries in which the Company and its Subsidiaries operate; provided
that in determining whether a Company Material Adverse Effect has occurred or would occur, any rights to proceeds from insurance or other
third party contribution or indemnification in respect of the event giving rise thereto available to the Company or its Subsidiaries
shall be taken into account to the extent that such proceeds have been actually paid, or, with respect to insurance, the carrier has
acknowledged that such event gives rise to a covered claim, to the Company or its Subsidiaries.
“Company
Organizational Documents” means the Company’s certificate of incorporation and bylaws, each as amended, and
each of its respective Subsidiaries’ certificate of formation or certificate of incorporation
and bylaws or limited liability company agreement, or other organizational documents (including, for the avoidance of doubt, Merger
Sub’s certificate of formation and limited liability company agreement), as applicable.
“Company
Stockholder Approval” means the approval of the Merger by the Company as the sole stockholder of Merger Sub, pursuant
to the Company Organizational Documents and Section 251 of the DGCL, and the adoption and approval of this Agreement and the Transactions
by the written consent of the Company Stockholders, pursuant to the Company Organizational Documents.
“Company
Transaction Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other
amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to Acquiror pursuant to the
terms of this Agreement or any other Transaction Document) by, the Company Group in connection with the negotiation, preparation or execution
of this Agreement or any other Transaction Document, the performance of its covenants or agreements in this Agreement or any other Transaction
Document or the consummation of the Transactions, including (a) the fees and expenses of outside legal counsel, accountants, advisors,
brokers, investment bankers, consultants, placement agents or other agents or service providers of the Company Group, and (b) any
other fees, expenses, commissions or other amounts that are expressly allocated to the Company Group pursuant to this Agreement or any
other Transaction Document. Notwithstanding the foregoing or anything to the contrary herein, Company Transaction Expenses shall not
include any Acquiror Transaction Expenses.
“Competition
Authorities” means the Antitrust Division of the United States Department of Justice or the United States Federal Trade
Commission, as applicable, the Directorate General for Competition of the European Commission, and any other Governmental Authority that
enforces Competition Laws in the jurisdictions set forth on Schedule 8.01(a).
“Competition
Laws” means the Sherman Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act
of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization,
abuse of dominance or restraint of trade or lessening competition through merger or acquisition, including all antitrust, competition,
merger control and unfair competition Laws.
“Confidentiality
Agreement” means the confidentiality agreement, dated as of August 11, 2023, by and between the Company and Acquiror
(as amended, modified or supplemented from time to time).
“Consent”
means any approval, consent, clearance, waiver, exemption, waiting period expiration or termination, Governmental Order or other authorization
issued by or obtained from any Governmental Authority.
“Contracts”
means any contract, agreement, license, sublicense, subcontract, lease, sublease, purchase order, note, indenture, mortgage, warrant,
loan, instrument, obligation or other commitment, in each case, that is legally binding on the Person in question (including all amendment,
supplements and modifications thereto).
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other epidemics, pandemics or disease outbreaks.
“COVID-19
Measures” means any quarantine, “shelter in place,” “stay at home,” social distancing, shut
down, closure, sequester or any other Law, directive, guidelines or recommendations by any Governmental Authority (including the Centers
for Disease Control and Prevention, the World Health Organization or an industry group) in relation to, arising out of, in connection
with or in response to an epidemic, pandemic or disease outbreak (including COVID-19), or any change in such Law, directive, guideline,
recommendation or interpretation thereof.
“Data
Protection Laws” means all applicable Laws pertaining to Processing of Personal Data, data protection, data privacy,
data security, data breach notification, data localization or data transfers.
“Data
Protection Requirements” means (i) Data Protection Laws and (ii) to the extent relating to the Processing of Personal
Data, data protection, data security, data breach notification, data localization, or data transfers, (a) the Company’s or its
Subsidiaries’ policies and notices, (b) industry standards to which the Company purports to be bound (including the Payment Card
Industry Data Security Standard) and (c) Contracts to which the Company or any of its Subsidiaries are bound.
“Divested
PRC Entities” means Shanghai Ares Hydrogen Energy Technology Co., Ltd. (上海翼龙集兆嘉能源有限公司),
Shanghai Chixinhang Motors Co Ltd. (上海阿雷斯智行汽车有限公司),
Hangzhou Ares Hydrogen Energy Technology Co., Ltd.(杭州阿雷斯氢能科技有限公司),
Fujian Giga Hydrogen Energy Technology Co. Ltd., (福建集兆嘉氢能科技有限公司),
Hainan Weixiang Hydrogen Energy Co., Limited (海南威享氢能科技有限公司)
and Beijing Giga Beike New Energy Technology Co. Ltd. (北京集兆嘉北科新能源科技有限公司),
which had been disposed of by the Company in 2022.
“DPA”
means the Defense Production Act of 1950, as amended (50 U.S.C. § 4565), and its implementing regulations located at 31 C.F.R. Parts
800, 802.
“EAR”
has the meaning specified in the definition of Trade Control Laws.
“Environmental
Laws” means any and all Laws relating to pollution, protection of the environment (including endangered or threatened
species or cultural, biological, archaeological or natural resources) or worker or public health and safety (solely to the extent related
to exposure to Hazardous Materials), including those related to the manufacture, generation, use, storage, distribution, transport, importing,
labeling, handling, Release, or cleanup of, or exposure of any Person to, Hazardous Materials.
“Equity
Securities” means, with respect to any Person, (i) any shares of capital or capital stock, partnership, membership,
joint venture or similar interest, or other voting securities of, or other ownership interest in, such Person, (ii) bonds, debentures,
notes or other Indebtedness having the right to vote (or convertible or exchangeable into or exercisable for securities having the right
to vote) on any matters on which stockholders of such Person, in their capacity as such, would have the right to vote (“Voting
Debt”), (iii) any securities of such Person convertible into or exchangeable for shares of capital or capital stock
or other voting securities of, or other ownership interests in, such Person, (iv) any warrants, calls, subscriptions, options or
other rights (including preemptive rights) to subscribe for, purchase or acquire from such Person, or other obligations of such Person
to issue, any shares of capital or capital stock, Voting Debt or other voting securities of, or other ownership interests in, or securities
convertible into or exchangeable for shares of capital or capital stock, Voting Debt or other voting securities of, or other ownership
interests in, such Person, or (v) any restricted shares, stock appreciation rights, restricted units, performance units, contingent
value rights, “phantom” stock or similar securities, profit participation, equity-based awards, or rights issued by or with
the approval of such Person that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price
of, any shares of capital or capital stock or other voting securities of, other ownership interests in, such Person or any business,
products or assets of such Person.
“ERISA
Affiliate” means any Person, trade or business (whether or not incorporated), that, together with the Company or any
of their respective Subsidiaries, is (or at the relevant time has been or would be) considered under common control, or treated as a
single employer, under or within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Extension
Stockholders’ Meeting” means a special meeting of the
stockholders of the Acquiror in accordance with the Acquiror Organizational Documents and the DGCL for the purpose of voting to approve
the Extension Proposal.
“Fraud”
means with respect to a Party, actual common law fraud with respect to the making of the express representations and warranties by such
Party in Article IV or Article V, as applicable; provided, however, that such fraud of a Party shall only
be deemed to exist if such Party had actual knowledge (and not imputed or constructive knowledge) at the time of making the applicable
representations or warranties of a material misrepresentation with respect to the representations and warranties made by such Party in
Article IV or Article V, as applicable, as qualified by the Schedules, and such material misrepresentation was made with
the actual intention of deceiving another Party who is relying on such representation or warranty.
“GAAP”
means United States generally accepted accounting principles, consistently applied.
“Government
Official” means any officer or employee of a Governmental Authority, state-owned entity or public organization, or any
person acting in an official capacity for or on behalf of any such Governmental Authority, state-owned entity or public organization.
“Governmental
Authority” means any United States or foreign federal, national, state, provincial, municipal or local government or
subdivision thereof, any authority, regulatory or administrative agency, commission, department, board, bureau or instrumentality thereof,
any quasi-governmental authority, or any court, arbitral body (public or private) or tribunal of competent jurisdiction.
“Governmental
Order” means any order, judgment, verdict, subpoena, injunction, decree, writ, ruling, stipulation, determination or
award, in each case, entered by or with any Governmental Authority.
“Hazardous
Material” means any material, substance or waste that is listed, regulated, or otherwise defined, including as “hazardous,”
“toxic,” or “radioactive,” or as a “pollutant” or “contaminant” (or words of similar
intent or meaning), under, or for which standards of conduct or liability may be imposed pursuant to, Environmental Laws, including petroleum
or any fraction or byproduct thereof, petroleum by-products, asbestos or asbestos-containing material, polychlorinated biphenyls, per-
and polyfluoroalkyl substances, flammable or explosive substances, or pesticides.
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and the rules and regulations promulgated thereunder.
“Indebtedness”
means, with respect to any Person as of any time, and including any accrued and unpaid interest, other payment obligations (including
prepayment and redemption premiums or penalties (if any), breakage costs, fees and other costs and expenses associated with repayment),
and accrued and unpaid commitment fees thereon, the following obligations (a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments (including debt-like instruments)
or debt securities, the payment of which such Person is responsible or liable for, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect
of the deferred and unpaid purchase price of property or services (excluding trade accounts payable in the ordinary course of business
and any earn-out obligation until such earn-out obligation becomes a liability on the balance sheet of such Person in accordance with
GAAP and has not been paid more than 60 days after being due and payable), (e) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f) all guarantees by such Person of Indebtedness of others
(other than by endorsement of negotiable instruments for collection in the ordinary course of business), and (g) all obligations
in respect of leases that would be required to be capitalized in accordance with GAAP (expressly excluding the application of ASC 842).
“Intellectual
Property” means all: (i) issued patents, patent applications (including divisionals, continuations, continuations-in-part,
extensions, reexaminations and reissues thereof), and intellectual property rights in inventions (whether or not patentable or reduced
to practice), (ii) trademarks, service marks, trade names, trade dress, slogans, and other indicia of origin, all goodwill associated
with the foregoing, and all registrations, applications and renewals in connection therewith, (iii) copyrights, any other intellectual
property rights in works of authorship, and all registrations applications, and renewals in connection therewith, (iv) internet
domain names and social media handles, (v) rights in Software, computer applications, source code and object code, (vi) trade secrets
and other rights in know-how, technologies, databases, processes, techniques, protocols, methods, formulae, algorithms, layouts, designs,
specifications and confidential information and (vii) all other intellectual
property rights of any kind or nature arising anywhere in the world.
“Intellectual
Property Registrations” means all Intellectual Property that is issued by or registered or applied-for with any Governmental
Authority or authorized private registrar in any jurisdiction, including registered trademarks, domain name registrations, copyright
registrations, issued and reissued patents, and pending applications for any of the foregoing, in each case, that is included in Owned
Intellectual Property.
“Investment
Screening Laws” means any applicable U.S. or foreign Laws intended to screen, prohibit or regulate foreign investments
on public interest or national security grounds, including the DPA.
“IT
Systems” means all software, computer and information technology systems, servers, networks, databases, computer hardware
and equipment, information, records, communications equipment, telecommunications equipment, interfaces, platforms, and peripherals that
are owned, used or controlled by or for the business of the Company or any of its Subsidiaries.
“ITAR”
has the meaning specified in the definition of “Trade Control Laws.”
“Law”
means any statute, act, code, law (including common law), ordinance, rule, regulation or Governmental Order, in each case, of any Governmental
Authority.
“Letters
of Credit” means any obligation for the reimbursement of an obligor of any letter of credit, banker’s acceptance
or similar Contract.
“Lien”
means any mortgage, deed of trust, deed to secure debt, pledge, hypothecation, encumbrance, charge, security interest, easement, condition,
covenant, restriction, conditional sale or other title retention agreement, preemptive right, collateral assignment, option, right of
first refusal, right of first offer, license, or other lien of any kind, including the interest of a vendor or a lessor under any conditional
sale agreement, capital lease, finance lease or title retention agreement or any financing lease having substantially the same economic
effect as any of the foregoing (other than, in the case of a security, any restriction on transfer of such security arising under securities
Laws).
“NASDAQ”
means the Nasdaq Stock Exchange.
“OFAC”
has the meaning specified in the definition of Sanctions Laws.
“Open
Source Software” means any (a) Software licensed or distributed as free software, open source software, or under
similar licensing or distribution models (including under any Software licensed under a license approved by the Open Source Initiative
at www.opensource.org), or (b) Software licensed or distributed under any of the following licenses or distribution models, or licenses
or distribution models similar to any of the following: GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), Copyleft
Software, Common Public License, the Artistic License (e.g., PERL), BSD, MIT, the Mozilla Public License, the Netscape Public License,
the Sun Community Source License (SCSL), Affero General Public License (AGPL), the Sun Industry Source License (SISL), or the Apache
Software License.
“Owned
Intellectual Property” means all Intellectual Property that is owned or purported to be owned by the Company or its
Subsidiaries, whether solely or jointly with others.
“PCAOB”
means the Public Company Accounting Oversight Board.
“Permits”
means all permits, licenses, franchises, approvals, consents, authorizations, registrations, certificates, variances, approvals and similar
rights obtained, or required to be obtained, from Governmental Authorities.
“Permitted
Liens” means (i) statutory or common law Liens of mechanics, materialmen, warehousemen, landlords, carriers, repairmen,
construction contractors and other similar Liens that arise in the ordinary course of business, that relate to amounts not yet delinquent
or that are being contested in good faith through appropriate Actions or that may thereafter be paid without penalty to the extent appropriate
reserves have been established in accordance with GAAP, (ii) Liens arising under original purchase price conditional sales Contracts
(to the extent not concerning real property) and equipment leases with third parties entered into in the ordinary course of business,
(iii) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Actions for which appropriate
reserves have been established in accordance with GAAP, (iv) easements, covenants, rights of way and similar restrictions that (A) are
matters of record, and (B) do not materially interfere with the present uses, occupancy, or value of such real property affected
thereby, (v) non-exclusive licenses of Intellectual Property granted to customers entered into in the ordinary course of business
consistent with past practices, (vi) Liens securing credit facilities existing as of the date of this Agreement or established in
accordance with this Agreement, (vii) Liens that secure obligations that are reflected as liabilities on the Most Recent Balance
Sheet, (viii) Real Property Leases and leases of equipment or other personal property in the ordinary course of business consistent
with past practices, (ix) Liens described on Schedule 1.01(a), and (x) Liens that do not materially impair the value
or the continued use and operation of the personal property to which they relate.
“Permitted
Payments” means each of the following: (a) any payment or transfer expressly required to be made pursuant to this
Agreement, (b) any payment or transfer referred to in Schedule 1.01(b), (c) any payment or transfer with the prior
written consent of Acquiror, (d) other than payments, transfers to or other transactions with any Stockholder Related Party, any
payment to, transfer to or other transaction with, on arm’s length terms to a bona fide third party customer, supplier or vendor
of the Company in the ordinary course of business consistent with applicable past practice, provided that, notwithstanding anything
herein or otherwise to the contrary, (i) for purposes of this clause (d), the term “Stockholder Related Party”
shall not include any Portfolio Companies, and (ii) for the avoidance of doubt, any such payments or transfers to any Portfolio
Companies shall be considered, and be, Permitted Payments for all purposes hereunder (e) any payments (including in respect of interest,
expense reimbursement, indemnities or otherwise) under the Contracts governing the Company’s or any of its Subsidiaries’
credit facilities existing as of the date of this Agreement (whether paid directly to the counterparties to such Contracts or indirectly
through any Stockholder Related Party), (f) payment of any indemnification or insurance to (including payment of any insurance premiums
on behalf of) any directors or officers of the Company or its Subsidiaries pursuant to the Company Organizational Documents or Contracts
in effect as of the date hereof that have been disclosed to Acquiror and the reimbursement of any out-of-pocket expenses incurred by
any directors and officers consistent with past practice, (g) any payment by the Company or its Subsidiaries in respect of salary
or other ordinary course compensation, reimbursement or advancement of reasonable expenses, or other benefits due to an individual in
his or her capacity as an employee or Service Provider of the Company or its Subsidiaries, in the ordinary course of business consistent
with past practice and (h) any payments between the Company and any of its wholly-owned Subsidiaries.
“Person”
means any individual, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture,
joint stock company, Governmental Authority or other entity of any kind.
“Personal
Data” means any data or information (i) relating to an identified natural person (or information that, in combination
with other information, could reasonably allow the identification of a natural person), including demographic, health, behavioral, biometric,
financial, nonpublic, and geolocation information, IP addresses, employee
information, and any other information defined as “personal data,” “personal information,” “personally
identifiable information,” or any similar term under applicable Law or (ii) that identifies, relates to, describes, is reasonably
capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, household, or
device.
“Portfolio
Company” means any “portfolio company” (as such terms is customarily used in the private equity industry)
of any investment fund, investment vehicle or similar entity affiliated with, advised or managed by any Company Stockholder or any of
their Affiliates.
“PRC”
or “China” means the People’s Republic of China, which, for purposes
of this Agreement, excludes the Hong Kong Special Administrative Region, the Macau Special Administrative Region and Taiwan.
“Process”
means, with respect to any data, information, or IT System, any operation or set of operations performed thereon, including access, collection,
use, storage, maintenance, processing, recording, distribution, transfer, protection, modification, destruction, retrieval, disposal,
sharing, or disclosure.
“Real
Property” means, collectively, the Leased Real Property and Owned Real Property.
“Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, abandonment,
disposing or other release into, on, under or through the environment (including ambient air (indoor or outdoor), surface water, groundwater,
land surface or subsurface strata).
“Representative”
means, as to any Person, any of the officers, directors, managers, employees, counsel, accountants, financial advisors, and consultants
of such Person.
“Required
Acquiror Stockholder Approval” means the approval of the Acquiror Stockholder Matters by the affirmative vote of the
holders of the requisite number of shares of Acquiror Common Stock entitled to vote thereon, whether in person or by proxy at a Special
Meeting (or any adjournment thereof), in accordance with the Acquiror Organizational Documents and applicable Law.
“Sanctioned
Country” means any country or territory or government thereof that is the subject or target of Sanctions Laws or a comprehensive
embargo under Trade Control Laws (currently, Cuba, Iran, North Korea, Syria, Venezuela and the Crimea region of Ukraine and the so-called
Donetsk People’s Republic and so-called Luhansk People’s Republic regions of Ukraine).
“Sanctioned
Person” means any Person that is (or was at the relevant time) (i) the subject or target of Sanctions Laws or Trade
Control Laws, (ii) listed on any restricted or prohibited party list under Sanctions Laws or Trade Control Laws, including OFAC’s
Specially Designated Nationals and Blocked Persons List, OFAC’s Sectoral Sanctions Identification List, OFAC’s Non-SDN Communist
Chinese Military Companies List, BIS’ Entity List, BIS’ Denied Persons List, BIS’ Unverified List, the UN Security
Council Consolidated List, UK Consolidated Financial Sanctions List, and the EU Consolidated List; (iii) incorporated, organized,
located, or resident in, or a national of, a Sanctioned Country; or (iv) in the aggregate, 50 percent or greater owned, directly
or indirectly, or controlled by Person(s) described under clauses (i), (ii) or (iii).
“Sanctions
Laws” means all U.S. and applicable non-U.S. economic or trade sanctions Laws, including those administered or enforced
by the United States (including by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”),
the U.S. Department of State, and the U.S. Department of Commerce), the
United Nations Security Council, the United Kingdom, the European Union and each of its Member States, Canada, Singapore, and Japan.
“Schedules”
means the disclosure schedules of the Company and its Subsidiaries or Acquiror, as applicable.
“SEC”
means the United States Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities
Laws” means the securities Laws of any state, federal or foreign Governmental Authority and the rules and regulations
promulgated thereunder.
“Service
Provider” means any bona fide third-party service provider other than any Stockholder Related Party.
“Software”
means all computer software (in object code or source code format), data and collections of data, and all information and manuals related
to any of the foregoing.
“Sponsor”
means OCA Acquisition Holdings, LLC, a Delaware limited liability company.
“Stock
Exchange” means the New York Stock Exchange, New York Stock Exchange American, Nasdaq or any other national securities
exchange.
“Stockholder
Related Party” means the Company Stockholders and any Affiliate of any Company Stockholder, in each case other than
the Company or its Subsidiaries. Notwithstanding anything herein to the contrary, in no event shall Stockholder Related Parties include
(or be considered to include): (i) any limited partners or other direct or indirect investors in any investment fund affiliated
with, advised or managed by any Company Stockholder or any of their respective Affiliates, or any of the respective Affiliates of any
such limited partners or investors or (ii) any director, officer or employee of the Company or its Subsidiaries that is not otherwise
affiliated with a Company Stockholder.
“Subsidiary”
means, with respect to a Person, any corporation or other organization (including a limited liability company or a partnership), whether
incorporated or unincorporated, of which such Person directly or indirectly owns or controls a majority of the Equity Securities having
by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect
to such corporation or other organization or any organization of which such Person or any of its Subsidiaries is, directly or indirectly,
a general partner or managing member. For the avoidance of doubt, the Company’s “Subsidiaries” shall include Merger
Sub.
“Tax”
means any federal, state, provincial, territorial, local, foreign and other net income tax, alternative or add-on minimum tax, franchise
tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee withholding or employer payroll
tax) ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, premium, escheat or unclaimed property, personal
property, real property, capital stock, profits, disability, registration, value added, estimated, customs duties, and sales or use tax,
or other tax or like assessment or charge, in each case imposed by any Governmental Authority, together with any interest, penalty, addition
to tax or additional amount imposed with respect thereto (or in lieu thereof) by a Governmental Authority.
“Tax
Return” means any return, report, statement, refund, claim, declaration, information return, statement, estimate or
other document filed or required to be filed with a Governmental Authority in respect of Taxes, including any schedule or attachment
thereto and including any amendments thereof.
“Trade
Control Laws” means (a) all U.S. and non-U.S. Laws relating to customs or import Laws, export, reexport, transfer
and retransfer control and trade Laws, including the Export Administration Regulations (“EAR”),
the International Traffic in Arms Regulations (“ITAR”), the customs and import
Laws administered by U.S. Customs and Border Protection, the EU Dual Use Regulation, UK Export Control Act 2002, and UK Export Control
Order 2008, SI 2008/3231; (b) Laws relating to information technology and communication supply chain (including U.S. Executive Order
13873); and (c) U.S. Antiboycott Laws.
“Transaction
Agreements” means this Agreement, the Lockup Agreement, the Sponsor Support Agreement, the Subscription Agreements,
the Registration Rights Agreement, the Company Stockholder Support Agreement and the Confidentiality Agreement (as defined above) and
all the agreements, documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits
and schedules thereto.
“Transactions”
means the transactions contemplated by this Agreement, including the Stock Split, the Investment, the PIPE Investment and the Merger.
“Treasury
Regulations” means the regulations promulgated under the Code.
“Warrant
Agreement” means the warrant agreement, dated as of January 14, 2021, by and between Acquiror and the Trustee.
“Willful
Breach” means, with respect to a Party, a material breach of a representation, warranty, covenant or agreement set forth
in this Agreement, as applicable, that is the consequence of a willful and intentional act or omission by such Party with the actual
knowledge such Party that such act or omission would result in such a material breach.
Section
1.02 Construction.
(a)
Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender, (ii) words using
the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,”
“hereby,” “hereto” and derivative or similar words refer to this entire Agreement, (iv) the terms “Article”,
“Section”, “Schedule”, “Exhibit” and “Annex” refer to the specified Article, Section,
Schedule, Exhibit or Annex of or to this Agreement unless otherwise specified, (v) the word “including” shall mean “including
without limitation,” (vi) the word “or” shall be disjunctive but not exclusive and have the meaning represented
by the term “and/or”, and (vii) the phrase “to the extent” means the degree to which a subject matter or
other thing extends, and such phrase shall not mean simply “if”.
(b)
Unless the context of this Agreement otherwise requires, references to Contracts shall be deemed to include all subsequent amendments
and other modifications thereto (subject to any restrictions on amendments or modifications set forth in this Agreement).
(c)
Unless the context of this Agreement otherwise requires, references to statutes shall include all regulations promulgated thereunder
and references to Laws shall be construed as including all Laws consolidating, amending or replacing the Law.
(d)
The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule
of strict construction shall be applied against any Party.
(e)
Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any
action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may
be deferred until the next Business Day.
(f)
The phrases “provided to Acquiror,” “delivered to Acquiror”, “furnished to Acquiror,” “made
available to Acquiror” and phrases of similar import when used herein, unless the context otherwise requires, means that a copy
of the information or material referred to has been made available to Acquiror no later than 5:00 p.m. on the day prior to the date of
this Agreement (i) in the virtual “data room” maintained by Ansarada that has been set up by the Company in connection
with this Agreement or (ii) by delivery to such Party or its legal counsel via electronic mail or hard copy form.
(g)
References to “$” or “dollar” or “US$” shall be references to Untied States dollars.
(h)
all references to “or” shall be construed in the inclusive sense of “and/or.”
Section
1.03 Equitable Adjustments. Without limiting anything contained in this Agreement (including Section 6.01), if, between
the date of this Agreement and the Closing, the outstanding shares of Company Common Stock or shares of Acquiror Common Stock shall have
been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification,
reorganization, recapitalization, split or combination or exchange of shares, then any number or amount contained herein which is based
upon the number of shares of Company Common Stock or shares of Acquiror Common Stock, will be appropriately adjusted to provide to the
holders of Company Common Stock or the holders of Acquiror Common Stock the same economic effect as contemplated by this Agreement prior
to such event; provided that, for the avoidance of doubt, this Section 1.03 shall not be construed to permit Acquiror, the Company
or the Merger Sub to take any action with respect to their respective securities that is prohibited by the terms and conditions of this
Agreement. For clarity, this Section 1.03 shall not apply to the transactions expressly contemplated by this Agreement, including
(a) the issuance of Acquiror Common Stock pursuant to (i) the Insider Subscription Agreements or (ii) the Subscription Agreements or
(b) the issuance of Company Common Stock pursuant to (i) the Note Conversion, (ii) the Company Restructuring or (iii) the Stock Split.
Section
1.04 Knowledge. As used herein, (i) the phrase “to the Knowledge of” or “the Knowledge of” the Company
shall mean the knowledge of the individuals identified on Schedule 1.04(a) and (ii) the phrase “to the Knowledge”
or “the Knowledge of” of Acquiror shall mean the knowledge of the individuals identified on Schedule 1.04(b),
in each case, as such individuals would have actually acquired in the exercise of a reasonable inquiry of his, her or their direct reports.
Article
II
The Merger
Section
2.01 The Merger.
(a)
At the Effective Time (as defined below), on the terms and subject to the conditions set forth herein and in accordance with the applicable
provisions of the DGCL, Merger Sub shall be merged with and into Acquiror, following which the separate corporate existence of Merger
Sub shall cease and Acquiror shall continue as the Surviving Acquisition Entity after the Merger and as a direct, wholly-owned subsidiary
of the Company.
Section
2.02 Effective Time of Merger. On the terms and subject to the conditions set forth herein, at the Closing, immediately following
the consummation of the Stock Split, the Acquiror and Merger Sub shall cause the Merger to be consummated by filing a certificate of
merger in the form to be agreed by the Parties pursuant to Section 8.01(a) (the “Certificate of Merger”) with
the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL and DLLCA, and the time of such
filing, or such later time as may be agreed in writing by the Company and Acquiror and specified in the Certificate of Merger, will be
the effective time of and constitute the consummation of the Merger (the “Effective Time”).
Section
2.03 Effect of the Merger. The effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable
provisions of the DGCL and the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all
the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub and Acquiror
shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Surviving
Acquisition Entity.
Section
2.04 Governing Documents. As of the Effective Time, the certificate of incorporation and bylaws of the Surviving Acquisition Entity
shall be the certificate of incorporation and bylaws of Acquiror as in effect immediately prior to the Effective Time.
Section
2.05 Directors and Officers. Immediately after the Effective Time, (a) the individuals who constituted the board of directors
of the Company as of immediately prior to the Effective Time shall constitute the board of directors of the Surviving Acquisition Entity
and (b) the officers of the Company as of immediately prior to the Effective Time shall be the officers of the Surviving Acquisition
Entity.
Section
2.06 Further Assurances. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Acquisition Entity following the Merger with full right, title and possession to
all assets, property, rights, privileges, powers and franchises of the Acquiror and Merger Sub, the applicable directors, officers and
members of the Acquiror and Merger Sub (or their designees) are fully authorized in the name of their respective corporations or otherwise
to take, and shall take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
Article
III
Merger Consideration; Closing
Section
3.01 Effect of the Merger on Acquiror Common Stock. On the terms and subject to the conditions set forth herein, at the Effective
Time, by virtue of the Merger and without any further action on the part of any Party or any other Person, the following shall occur:
(a)
Each share of Acquiror Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) will
be automatically cancelled and extinguished and collectively converted into the right to receive the Closing Per Share Stock Consideration,
which shall be issued pursuant to Section 3.02(b). The anticipated pro forma capitalization of Acquiror after the Closing is set
forth on Exhibit E attached hereto.
(b)
All of the issued and outstanding limited liability company interests of Merger Sub shall be converted into and become one thousand (1,000)
validly issued, fully paid and non-assessable shares of common stock, par value $0.01 per share, of the Surviving Acquisition Entity,
which shall constitute 100% of the outstanding Equity Securities of the Surviving Acquisition Entity as of immediately following the
Effective Time. From and after the Effective Time, all certificates representing the limited liability company interests of Merger Sub
(if any) shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Acquisition Entity into
which they were converted in accordance with the immediately preceding sentence.
(c)
All shares of Acquiror Common Stock held in Acquiror’s treasury immediately prior to the Effective Time (“Excluded
Shares”) shall be automatically cancelled and extinguished, and no consideration shall be paid or payable with respect
thereto.
Section
3.02 Closing.
(a)
Subject to the terms and conditions of this Agreement, the consummation of the Merger (the “Closing”)
shall take place at the offices of Graubard Miller, 405 Lexington Avenue, 44th Floor, New York, New York 10174 or electronically
by the mutual exchange of electronic signatures (including portable document format (“pdf”)) on the date that is two (2)
Business Days following the date on which all conditions set forth in Article IX have been satisfied or waived (other than those
conditions that by their terms or nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions
at the Closing), or at such other place, time or date as Acquiror and the Company may mutually agree in writing. The date on which the
Closing occurs is referred to herein as the “Closing Date.”
(b)
At the Closing and simultaneously with the Effective Time, the Company shall issue and deliver to each Acquiror Stockholder a number
of shares of Company Common Stock equal to (i) the number of shares of Acquiror Common Stock owned by such Acquiror Stockholder immediately
prior to the Effective Time, multiplied by (ii) the Closing Per Share Stock Consideration, which such shares shall be newly and validly
issued, credited as fully paid, rank pari passu in all respects with the other shares of Company Common Stock and be free and
clear of any Liens (other than generally applicable transfer restrictions under applicable securities Laws, and the restrictions under
the Lockup Agreement) (the shares of Company Common Stock issued to the stockholders of Acquiror (“Acquiror Stockholders”)
pursuant to this Section 3.02(b), collectively the “Closing
Share Consideration”). The Closing Share Consideration so issued will be delivered in book entry form.
Section
3.03 Withholding Rights. Notwithstanding anything in this Agreement to the contrary, the Acquiror, the Merger Sub, the Company,
and their respective Affiliates shall be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement, any
amount required to be deducted and withheld with respect to the making of such payment under applicable Law; provided that the Person
intending to withhold shall use commercially reasonable efforts to provide advance notice to the Person to whom amounts would otherwise
be payable (provided, however, that the notice requirement set forth in this Section 3.03 shall not apply to any withholding required
under applicable Law as a result of a failure to deliver the forms described in Section 6.05), which notice shall include the
anticipated amount of withholding and a description of the factual and legal basis therefor. To the extent that amounts are so withheld
and paid over to the appropriate Governmental Authority, such withheld amounts 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. The Parties shall reasonably cooperate to
minimize the amount of any deductions or withholding.
Article
IV
Representations
and Warranties of the Company PARTIES
Except
as set forth in the Schedules to this Agreement, the Company represents and warrants to Acquiror as of the date of this Agreement and
as of the Closing Date as follows:
Section
4.01 Corporate Organization of the Company Parties. Each of the Company Parties has been duly incorporated or formed, is validly
existing as a corporation or limited liability company and is in good standing under the Laws of the State of Delaware and has the corporate
or limited liability company power and authority to own, operate and lease its properties, rights and assets and to conduct its business
as it is now being conducted. The Company has made available to Acquiror true and correct copies of the Company Organizational Documents
as in effect as of the date hereof. Each of the Company Parties is duly licensed, registered or qualified and in good standing (or the
equivalent thereof) as a foreign entity in each jurisdiction in which the ownership of its property or the character of its activities
is such as to require it to be so licensed, registered or qualified, except where failure to be so licensed, registered or qualified
would not reasonably be expected to have a Company Material Adverse Effect.
Section
4.02 Subsidiaries. The Subsidiaries of the Company, together with details of their respective jurisdiction of incorporation or
organization, are set forth on Schedule 4.02(a). The Subsidiaries of the Company have been duly formed or organized, are
validly existing under the laws of their jurisdiction of incorporation or organization and have the power and authority to own, operate
and lease their respective properties, rights and assets and to conduct their business as it is now being conducted, except as would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Subsidiary of the Company
is duly licensed, registered or qualified and in good standing (or the equivalent thereof) as a foreign entity in each jurisdiction in
which its ownership of property or the character of its activities is such as to require it to be in good standing or so licensed, registered
or qualified, except where the failure to be in good standing or so licensed, registered or qualified would not have, and would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth in Schedule 4.02(b),
Merger Sub has no direct or indirect Subsidiaries or participants in joint ventures or other entities, and does not own, directly or
indirectly, any capital stock or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated.
The Company owns one hundred percent (100%) of the issued and outstanding membership interests of Merger Sub.
Section
4.03 Due Authorization. Each of the Company Parties has the requisite corporate or limited liability company power and authority
to execute and deliver this Agreement and each other Transaction Agreement to which it is or will be a party and (subject to the approvals
described in Section 4.05) to perform all obligations to be performed by it hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of this Agreement and such other Transaction Agreements and
the consummation of the transactions contemplated hereby and thereby have been duly authorized by the board of directors of each Company
Party, and no other corporate proceeding on the part of any Company Party is necessary to authorize this Agreement or any other Transaction
Agreements or any Company Party’s performance hereunder or thereunder, other than the Company Stockholder Approval. This Agreement
has been, and each such other Transaction Agreement to which such Company Party is a party (when executed and delivered by such Company
Party) will be, duly and validly executed and delivered by such Company Party and, assuming due and valid authorization, execution and
delivery by each other party hereto and thereto, this Agreement constitutes, and each such other Transaction Agreement will constitute,
a valid and binding obligation of such Company Party, enforceable against each Company Party in accordance with its terms, subject to
(x) obtaining the Company Stockholder Approval and (y) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general
principles of equity, whether such enforceability is considered in a proceeding in equity or at Law (the “Enforceability Exceptions”).
The minute books of each of the Company and its Subsidiaries contain true, complete and accurate records of all meetings and consents
in lieu of meetings of such Person’s board of directors (and any committees thereof), similar governing bodies and holders of Equity
Securities. Copies of such records of each of the Company and its Subsidiaries have been heretofore made available to the Company or
its counsel.
Section
4.04 No Conflict. Subject to the receipt of the consents, approvals, authorizations and the other requirements set forth in Section
4.05 and on Schedule 4.04, and subject to obtaining the Company Stockholder Approval, the execution, delivery and performance
by any Company Party of this Agreement and the Transaction Agreements to which such Company Party is or will be a party and the consummation
by such Company Party of the transactions contemplated hereby and thereby do not and will not, (a) contravene or conflict with the
Company Organizational Documents, (b) contravene or conflict with or constitute a violation of any provision of any Data Protection
Requirement or any Law, Permit or Governmental Order binding upon or applicable to the Company or any of its Subsidiaries or any of their
respective assets or properties, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under,
constitute a default under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration
or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Specified Contract or Real
Property Lease or (d) result in the creation or imposition of any Lien on any asset, property or Equity Security of the Company
or any of its Subsidiaries (other than any Permitted Liens) or result in a violation of, a termination (or right of termination) or cancellation
of, or default under, or the creation or acceleration of any obligation or the loss or reduction of a benefit under, any provision of,
any Specified Contract or Real Property Lease, except in the case of each of clauses (b) through (d) for such violations, contraventions,
conflicts, creations, impositions, violations, terminations, breaches or defaults that would not, individually or in the aggregate, have
a Company Material Adverse Effect.
Section
4.05 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of Acquiror
contained in this Agreement, no action by, consent, approval, Permit or authorization of, or designation, declaration or filing with,
any Governmental Authority or notice, approval, consent waiver or authorization from any Governmental Authority is required on the part
of any Company Party with respect to the execution, delivery and performance of this Agreement and the Transaction Agreements by such
Company Party to which such Company Party is a party and the consummation of the transactions contemplated hereby and thereby, except
for (i) obtaining the consents of, or submitting notifications, filings, notices or other submissions to, the Governmental Authorities
listed on Schedule 4.05, (ii) the filing with the SEC of (A) the Registration Statement (and the effectiveness
thereof) and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement,
the Transaction Agreements or the transactions contemplated hereby or thereby, (iii) the filing of the Certificate of Merger in
accordance with the DGCL and DLLCA and (iv) any actions, consents, approvals, Permits or authorizations, the absence of which would
not, individually or in the aggregate, reasonably be expected to be materially adverse to the Company and its Subsidiaries, taken as
a whole.
Section
4.06 Capitalization.
(a)
The authorized capital stock of each Company Party is set forth on Schedule 4.06(a). All of the Equity Securities of each
Company Party to be issued and outstanding immediately following the Company Restructuring are set forth on Schedule 4.06(a),
all of which will be held by the Company Stockholders or the Company, as applicable. The Equity Securities of the Company Parties are,
and the Equity Securities issued in the Company Restructuring will be, free and clear of all Liens (other than Permitted Liens), and
have not been and will not be issued in violation of any Contract, preemptive or similar rights or applicable Law. The issued and outstanding
Equity Securities of the Company have been, and the Equity Securities issued in the Company Restructuring will be, duly authorized and
validly issued and fully paid and non-assessable. Except as set forth on Schedule 4.06(a), immediately following the Company
Restructuring and as of the Closing Date (but before giving effect to the Stock Split), there will be no Equity Securities of the Company
issued and outstanding.
(b)
There are no outstanding or authorized options, warrants, contingent value rights, equity appreciation, phantom stock, profit participation
or similar rights with respect to the Equity Securities of, or other equity or voting interest in, any Company Party, or other securities
convertible into or exercisable or exchangeable into Equity Securities of any Company Party, including any commitments, calls, conversion
rights, rights of exercise or privilege (whether pre-emptive, contractual or by matter of law), plans or agreements providing for the
issuance of additional shares (or other Equity Securities of any Company Party), other than in connection with the Company Restructuring
and the Stock Split and as otherwise contemplated by this Agreement. No Person is entitled to any preemptive or similar rights to subscribe
for Equity Securities of any Company Party. There are no outstanding contractual obligations of any Company Party to repurchase, redeem
or otherwise acquire any Equity Securities of such Company Party. There are no outstanding bonds, debentures, notes or other Indebtedness
of any Company Party having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any
matter for which such Company Party’s stockholders may vote.
(c)
Except as set forth on Schedule 4.06(c), and other than in connection with the Company Restructuring and the Stock Split, (i) there
are no declared but unpaid dividends or distributions in respect of any Equity Securities of any Company Party and (ii) since December
31, 2021 through the date of this Agreement, no Company Party has made, declared, set aside, established a record date for or paid any
dividends or distributions.
(d)
The Company is not the subject of any bankruptcy, dissolution, liquidation or similar legal proceedings.
Section
4.07 Capitalization of Subsidiaries.
(a)
The issued and outstanding Equity Securities of each of the Company’s Subsidiaries have been
duly authorized and validly issued and are fully paid and non-assessable. Except as set forth on Schedule 4.07(a), the registered
capital of each PRC Subsidiary of the Company has been fully contributed in accordance with applicable PRC Laws. The issued and outstanding
Equity Securities of each Subsidiary owned by the Company are as set forth on Schedule 4.02,
and such Equity Securities are owned free and clear of any Liens (other than the restrictions under applicable Securities Laws, the terms
of the Governing Documents of such Subsidiary, and Permitted Liens) and have not been issued in violation of preemptive or similar rights.
(b)
There are no outstanding or authorized equity appreciation, phantom stock, profit participation or similar rights with respect to the
Equity Securities of, or other equity or voting interest in, any Subsidiary of the Company. No Person is entitled to any preemptive or
similar rights to subscribe for Equity Securities of any Subsidiary of the Company. Except for Equity Securities in any direct or indirect
wholly-owned Subsidiary of the Company, neither the Company nor any of its Subsidiaries owns any Equity Securities in any Person (other
than publicly traded securities held for cash management purposes). There are no outstanding contractual obligations of any Subsidiary
of the Company to repurchase, redeem or otherwise acquire any Equity Securities of any Subsidiary of Company. There are no outstanding
bonds, debentures, notes or other Indebtedness of any Subsidiary of the company having the right to vote (or convertible into, or exchangeable
for, securities having the right to vote) on any matter for which such Subsidiaries’ stockholders may vote. No Person (other than
those set forth on Schedule 4.02) has any rights with respect to the governance, management and/or economic interest in any of
the Company’s Subsidiaries. There is no pending or to the Knowledge of the Company, threatened (in writing), dispute or Action
with respect to, or which could adversely affect the Company’s ownership of any of the Company’s Subsidiaries in any material
respect.
(c)
Except as set forth on Schedule 4.07(c), neither the Company nor any of its
Subsidiaries owns any Equity Securities in any Person.
Section
4.08 Financial Statements.
(a)
Attached as Schedule 4.08 hereto are copies of (i) the audited consolidated balance sheets of the Company and its Subsidiaries
as at December 31, 2022 and 2021, and the related audited consolidated statements of operations, comprehensive income, shareholders’
equity and cash flows for the periods then ended, together with the auditor’s reports thereon (the “Audited
Financial Statements”), and (ii) the unaudited consolidated condensed balance sheet of the Company as at June 30,
2023 (the balance sheet as of June 30, 2023, the “Most Recent Balance
Sheet” and the date thereof, the “Most Recent Balance
Sheet Date”) and the related unaudited consolidated condensed statements of income and comprehensive income, stockholders’
equity and cash flows for the six-month period ended June 30, 2023 (the “Interim
Financial Statements” and, together with the Audited Financial Statements, the “Financial
Statements”).
(b)
The Financial Statements present fairly, in all material respects, the consolidated financial position, cash flows, income, changes in
equity and results of operations of the Company and its Subsidiaries as of the dates and for the periods indicated in such Financial
Statements in conformity with GAAP during the periods involved (except as otherwise indicated in such statements and, in the case of
the Interim Financial Statements, subject to the absence of footnotes and other presentation items and for normal or immaterial year-end
adjustments) and were derived from, the books and records of the Company and its Subsidiaries (which books and records are, in all material
respects, true and complete and have been maintained in all material respects in accordance with commercially reasonable business practices).
(c)
The Company and its Subsidiaries have established and maintain systems of internal accounting controls that are designed to provide,
in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization
and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance
with GAAP and to maintain accountability for the Company’s and its Subsidiaries’ assets. The Company has engaged an auditing
firm that has at all required times since the date of enactment of the Sarbanes-Oxley Act been (x) a registered public accounting
firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act), (y) “independent” with respect to the Company and each
of its Subsidiaries within the meaning of Regulation S-X under the Exchange Act, and (z) in compliance with subsections (g)
through (l) of Section 11A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company
Accounting Oversight Board thereunder.
(d)
As of the date of this Agreement, the principal balance outstanding under the Company’s and its Subsidiaries’ collective
credit facilities is not in excess of $20,000,000.
(e)
The Company has not identified or been made aware of any, and to the Knowledge of the Company, there is no (i) “significant deficiency”
in the internal accounting controls of the Company, (ii) “material weakness” in the internal controls over financial reporting
of the Company or (iii) fraud, whether or not material, that involves management or other employees of the Company who have a significant
role in the internal accounting controls of the Company.
Section
4.09 Absence of Certain Changes. Except as set forth on Schedule 4.09, since the Most Recent Balance Sheet Date through
the date of this Agreement, (a) except as expressly contemplated by this Agreement, the other Transaction Agreements or in connection
with the transactions contemplated hereby or thereby, the Company and its Subsidiaries have conducted their businesses in all material
respects in the ordinary course of business consistent with past practices, (b) there has not been any event, occurrence or development
that has had, or could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (c) neither
the Company nor any of its Subsidiaries has taken any action that, if taken after the date of this Agreement without Acquiror’s
consent, would constitute a violation of Section 6.01.
Section
4.10 Undisclosed Liabilities. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any liabilities
or obligations (whether accrued, absolute, contingent or otherwise) of a nature required to be reflected or reserved for on a balance
sheet prepared in accordance with GAAP, except for liabilities or obligations (a) reflected or reserved for in the Financial Statements
or disclosed in any notes thereto, (b) that have arisen since the Most Recent Balance Sheet Date in the ordinary course of business
of the Company and its Subsidiaries and are not material to the Company and its Subsidiaries, taken as a whole, (c) incurred or
arising under or in connection with the Transactions, including expenses related thereto, (d) disclosed in the Schedules, (e) under
any Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries may be bound,
or (f) that do not exceed $3,000,000 in the aggregate. Merger Sub was formed solely for the purpose of engaging in the Transactions,
has not conducted, and prior to the Closing will not conduct, any business and has no, and prior to the Closing will have no, assets,
liabilities or obligations of any nature other than, in each case, those incidental to its formation and pursuant to this Agreement and
any other Transaction Agreements to which it is a party, as applicable, and the Transactions and such Transaction Agreements, as applicable.
Section
4.11 Litigation and Proceedings. Except as set forth on Schedule 4.11, there are no, and for the past three (3) years, there
have been no, pending or, to the Knowledge of the Company, threatened (in writing) Actions by or against the Company or any of its Subsidiaries
that, if adversely decided or resolved, would be, or would reasonably be expected to be, material, individually or in the aggregate,
to the Company and its Subsidiaries, taken as a whole. There is no Governmental Order imposed upon the Company or any of its Subsidiaries,
except as would not have, or would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Company nor any
of its Subsidiaries is party to a settlement or similar agreement regarding any of the matters set forth in the two preceding sentences
that contains any ongoing obligations, restrictions or liabilities or obligations, that would, individually or in the aggregate, reasonably
be expected to materially inhibit the ability of the Company or any of its Subsidiaries to enter into and perform its obligations under
this Agreement.
Section
4.12 Compliance with Laws. The Company and its Subsidiaries are, and for the past three (3) years have been, in compliance in all
material respects with all applicable Laws. None of the Company or its Subsidiaries has received any written notice from any Governmental
Authority of a material violation of any applicable Law at any time in the past three (3) years. The Company and its Subsidiaries hold,
and for the past three (3) years have held, all Permits necessary for the lawful conduct of the business of the Company, except for such
Permits where the failure to so hold has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect (the “Company Permits”). The Company and its Subsidiaries are, and for the past three (3)
years have been, in compliance with and not in default under such Company Permits, in each case except for such noncompliance that would
not, individually or in the aggregate, have a Company Material Adverse Effect.
Section
4.13 Contracts; No Defaults.
(a)
Schedule 4.13(a) contains a true, correct and complete list of all Contracts described in clauses (i) through (xvii)
of this Section 4.13(a) to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party other than
Company Benefit Plans and Real Property Leases (all such Contracts as described in clauses (i) through (xvii), collectively,
the “Specified Contracts”).
(i)
Each Contract with a Top Customer or Top Supplier;
(ii)
Each Contract, other than a customer Contract, that involves aggregate payments or consideration furnished (x) by the Company or
by any of its Subsidiaries of more than $1,000,000 or (y) to the Company or to any of its Subsidiaries of more than $1,000,000,
in each case, in the calendar year ended December 31, 2022 or any subsequent calendar year;
(iii)
(x) Each Contract relating to Indebtedness having an outstanding principal amount, together with any undrawn commitments to fund
Indebtedness under such Contract, in excess of $1,000,000 and (y) each outstanding Letter of Credit with commitments in excess of
$1,000,000;
(iv)
Each Contract that is a purchase and sale or similar agreement for the acquisition of any Person or any business unit thereof, in each
case, involving payments in excess of $500,000 and with respect to which there are any material ongoing obligations;
(v)
Each joint venture, partnership or similar Contract (other than Contracts between wholly-owned Subsidiaries of the Company) that is material
to the Company and its Subsidiaries, taken as a whole;
(vi)
Each Contract under which the Company or any of its Subsidiaries (x) is a licensee or otherwise receives any right with respect
to any Intellectual Property material to the Company or the operation of its business (excluding (A) non-exclusive click-wrap and
shrink-wrap licenses and (B) non-exclusive licenses for off-the-shelf software and other non-exclusive licenses of unmodified software
that is commercially available to the public generally, in each case with one-time or annual aggregate fees of less than $250,000), (y) is
a licensor or otherwise grants to a third party any rights to use any item of Intellectual Property, other than non-exclusive licenses
or sublicenses granted to customers in the ordinary course of business, or (z) are subject to any material restriction on the Company
or its Subsidiaries ability to use or exploit any Intellectual Property;
(vii)
Each Contract requiring capital contributions or other capital expenditures after the date of this Agreement in an amount in excess of
$500,000 in the aggregate;
(viii)
Each collective bargaining agreement or other Contract with any labor union, labor organization, works council, or employee representative
body (each a “CBA”);
(ix)
Each employment or independent contractor agreement or similar Contract with any current officer or director, employee or individual
service provider of the Company or any of its Subsidiaries that (i) provides for an annual base salary or fee in excess of $100,000 or
(ii) cannot be terminated upon thirty days’ notice or less without payment or liability;
(x)
Each Contract with any current or former employee, director or other individual service provider of the Company or any of its Subsidiaries
that provides for change in control or transaction-based payments and/or benefits and triggered by the Merger;
(xi)
Each Contract which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties,
assets or businesses of the Company and its Subsidiaries, taken as a whole;
(xii)
Each Contract containing covenants of the Company or any of its Subsidiaries, (A) prohibiting or limiting the right of the Company
or any of its Subsidiaries to engage in or compete with any Person in any line of business or (B) prohibiting or restricting the
Company’s and its Subsidiaries’ ability to conduct their business with any Person in any geographic area, in each case, that
currently has or would reasonably be expected to have a material and adverse effect on the business, as currently operated, of the Company
and its Subsidiaries, taken as a whole, in each case other than, for the avoidance of doubt, customary non-solicitation and no-hire provisions
entered into in the ordinary course of business;
(xiii)
Each Contract that grants to any third Person any “most favored nation rights”;
(xiv)
Each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which the Company
or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(xv)
Each Contract entered into primarily for the purpose of interest rate or foreign currency hedging;
(xvi)
Each Affiliate Agreement; and
(xvii)
Each Contract that relates to the acquisition or disposition of any Equity Securities in, or assets or properties of, the Company or
any of its Subsidiaries (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which (A) any deferred or contingent
payment obligations by or to the Company or any of its Subsidiaries remain outstanding or (B) any indemnification payment obligations
remain outstanding (excluding acquisitions or dispositions in the ordinary course of business consistent with past practice or of assets
that are obsolete, worn out, surplus or no longer used in the conduct of the Company’s business).
(b)
The Company has made available to Acquiror complete and accurate copies of each Specified Contract as in effect as of the date of this
Agreement and, to the Knowledge of the Company, no service order, statement of work, or other agreement not provided to Acquiror modifies
any material terms of the applicable Specified Contract. Except for any Contract that will terminate upon the expiration of the stated
term thereof prior to the Closing Date or as would not reasonably be expected, individually or in the aggregate, to be materially adverse
to the Company and its Subsidiaries, taken as a whole, each Specified Contract is (i) in full force and effect and (ii) represents
the legal, valid and binding obligations of the Company or one or more of its Subsidiaries party thereto and, to the Knowledge of the
Company, represents the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability
Exceptions. Except, in each case, where the occurrence of such breach or default or failure to perform would not reasonably be expected,
individually or in the aggregate, be materially adverse to the Company and its Subsidiaries, taken as a whole, (x) the Company and
its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Specified
Contracts, and (y) none of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other party thereto is
in breach of or default of any Specified Contract and during the last 12 months, neither the Company nor any of its Subsidiaries has
received any claim or notice of termination or breach of or default under any such Specified Contract.
Section 4.14
Company Benefit Plans.
(a)
Schedule 4.14(a) sets forth a true, correct, and complete list of each Company Benefit Plan (as defined below) and,
with respect to each Company Benefit Plan that is subject to the Laws of a jurisdiction other than the United States (whether or not United
States Law also applies) or primarily for the benefit of current or former employees, directors or other service providers of the Company
or its Subsidiaries who reside or work primarily outside of the United States (including any statutory pension, work injury, maternity,
medical or unemployment insurance, housing funds or other benefit plans sponsored or maintained by any of the Subsidiaries for current
or former employees of the Subsidiaries pursuant to the any applicable PRC Laws) (each, a “Foreign
Plan”), separately identifies each such Foreign Plan. For purposes of this Agreement, the term “Company
Benefit Plan” means each “employee benefit plan” within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”),
and each equity ownership, equity purchase, equity option, phantom equity, equity or other equity-based award, severance, separation,
employment, individual consulting, retention, change-in-control, transaction bonus, fringe benefit, collective bargaining, bonus, incentive,
compensation, deferred compensation, employee loan, health, welfare and each other benefit or compensation plan, agreement, program, policy,
practice, Contract or other compensation or benefits arrangement, in each case, whether or not subject to ERISA, whether written or unwritten,
(i) which is contributed to, required to be contributed to, sponsored by or maintained by, in each case, the Company or any of its
respective Subsidiaries including for the benefit of any current or former employees, officers, directors, consultants or independent
contractors of the Company or any of its respective Subsidiaries, (ii) under or with respect to which any current or former employee,
officer, director, consultant or independent contractor of the Company or any of its respective Subsidiaries has any present or future
right to benefits, or (iii) under or with respect to which the Company or any of its respective Subsidiaries has any liability or
obligation, contingent or otherwise.
(b) With
respect to each Company Benefit Plan, the Company has provided or made available to Acquiror true, complete and correct copies of, to
the extent applicable: (i) each Company Benefit Plan document and all amendments thereto (or, if not written a written summary of
its terms) and any trust agreement, insurance contracts or other funding instrument or vehicles and amendments thereto relating to such
plan, (ii) the most recent summary plan description and summary of material modifications, (iii) the most recent annual report
on Form 5500 and all attachments thereto, (iv) the most recent actuarial valuation and audited financial statements, (v) the
most recent determination, advisory or opinion letter issued by the Internal Revenue Service, and (vi) any material non-routine
correspondence with any Governmental Authority.
(c) Each Company
Benefit Plan has been established, maintained, funded and administered, in each case, in accordance, in all material respects, with
its terms and in compliance, in all material respects, with all applicable Laws, including ERISA and the Code, and all
contributions, premiums or other payments and/or amounts that are required to be made or due with respect to any Company Benefit
Plan have been timely made or, if not yet due, properly accrued and reflected in the Company’s or one of its
Subsidiaries’ (as applicable) financial statements to the extent required by GAAP.
(d) Each
Company Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code is so qualified and (A) has
received a favorable determination or opinion letter as to its qualification prior to the date of this Agreement or (B) has been
established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has
been obtained by the plan sponsor and is valid as to the adopting employer, and, in either case, nothing has occurred, whether by action
or failure to act or otherwise, that could reasonably be expected to adversely affect such qualification or result in the loss of such
qualification.
(e) No
event has occurred and no condition exists that would subject the Company or any of their respective Subsidiaries, either directly or
by reason of their affiliation with any ERISA Affiliate, to any material Tax, fine, Lien, penalty or other liability imposed by ERISA,
the Code or other applicable Law, including any Tax or penalty under Sections 4980B, 4980H, 6721 or 6722 or the Code. There do not
exist any pending or, to the Company’s knowledge, threatened (in writing) claims or Actions (other than routine claims for benefits)
or other actions, suits, audits, arbitration or legal, judicial or administrative proceeding (whether in law or in equity), or investigations
with respect to any Company Benefit Plan and, to the Knowledge of the Company, no facts or circumstances exist that would reasonably
be expected to give rise to any such Actions, or other actions, suits, audits, arbitration or legal, judicial or administrative proceeding
(whether in law or in equity), or investigations. There have been no “prohibited transactions” within the meaning of Section 4975
of the Code or Sections 406 or 407 of ERISA and not otherwise exempt under Section 408 of ERISA and no breach of fiduciary
duty (as determined under ERISA) with respect to any Company Benefit Plan.
(f) Neither
the Company nor any of its Subsidiaries maintains or sponsors or has any obligation to provide or has incurred any liability in respect
of post-employment, post-service or post-ownership health, medical, life or welfare benefits for any current or former employee, officer,
director, consultant or independent contractor of the Company or any of its Subsidiaries or other Person, except as required under Section 4980B
of the Code and at the sole expense of the applicable current or former employee, officer, director, consultant or independent contractor
of the Company or any of its respective Subsidiaries or other Person.
(g) Neither
the Company nor any of its Subsidiaries nor their respective ERISA Affiliates sponsors, maintains, contributes to or has an obligation
to contribute to or at any time during the preceding six (6) years has sponsored, maintained, contributed to or was required to contribute
to, or otherwise has any current or contingent liability or obligation under or with respect to: (1) any “multiemployer plan”
(within the meaning of Section 3(37) of ERISA or Section 4001(a)(3) of the Code), (2) a “defined benefit plan”
(within the meaning of Section 3(35) of ERISA), whether or not subject thereto or any other “employee pension benefit plan”
(within the meaning of Section 3(2) of ERISA) that is or was subject to Section 302 or Title IV of ERISA or Section 412, Section 430
or Section 4971 of the Code, (3) a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c)
of the Code), or (4) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Neither the Company,
its Subsidiaries nor any of their respective ERISA Affiliates has incurred any withdrawal liability under Section 4201 of ERISA
that has not been fully satisfied. Neither the Company nor any of its Subsidiaries has any current or contingent liability or obligation
as a consequence of at any time being considered a single employer with any other Person under Section 414 of the Code.
(h) Neither
the execution and delivery of this Agreement by the Company, shareholder approval of this Agreement, nor the consummation of the transactions
contemplated by this Agreement could reasonably be expected to (whether alone or in connection with any subsequent event(s)): (A) result
in the acceleration, increase, funding or vesting of any compensation or benefits to, or the forgiveness of debt with respect to, any
current or former employee, officer, director, consultant or individual service provider of the Company or any of its Subsidiaries under
any Company Benefit Plan or otherwise; (B) entitle any current or former employee, officer, director, consultant or individual service
provider of the Company or any of its Subsidiaries to any severance pay or other compensation or benefits or to any increase in severance
pay or other compensation or benefits; (C) limit the right or ability to terminate or amend any Company Benefit Plan; or (D) directly
or indirectly cause the Company or any of its Subsidiaries to transfer or set aside any assets to fund any benefits under any Company
Benefit Plans.
(i) (A) No
amount, payment, right or benefit that could be, or has been, received (whether in cash or property or the vesting of property or the
cancellation of indebtedness) by any current or former employee, officer, director, shareholder, consultant or other individual service
provider of the Company, any of its Subsidiaries or their Affiliates who is a “disqualified individual” within the meaning
of Section 280G of the Code could reasonably be or is expected to be characterized as, or give rise to, separately or in the aggregate,
an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) or be nondeductible under Section 280G
of the Code, as a result of the consummation of the transactions contemplated by this Agreement (whether alone or in connection with
any subsequent event(s)), and (B) neither the Company nor any of its Subsidiaries has any obligation to indemnify, gross-up or reimburse,
or otherwise make whole any individual for any Tax or related interest or penalties incurred by such individual, including under Sections 409A
or 4999 of the Code or otherwise.
(j) Each
Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of
the Code has been operated and maintained in all material respects in compliance with Section 409A of the Code, and all applicable
regulations and notices issued thereunder.
(k) With
respect to each Foreign Plan: (A) all employer and employee contributions to each Foreign Plan required by Law or by the terms of
such Foreign Plan have been timely made, or, if applicable, accrued in accordance with normal accounting practices; (B) each Foreign
Plan required to be registered or intended to meet certain regulatory or requirements for favorable Tax treatment has been timely and
properly registered and has been maintained in good standing in all material respects with applicable regulatory authorities and there
are no existing circumstances or events that have occurred that could reasonably be expected to adversely affect such plan; and (C) no
Foreign Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity,
provident fund, gratuity or similar plan or arrangement or has any unfunded or underfunded liabilities, and adequate reserves have been
established with respect to any Foreign Plan that is not required to be funded.
Section 4.15
Labor Matters.
(a) Neither
the Company nor any of its Subsidiaries is party to or bound by any CBA or arrangements with a labor union, works council or labor organization
and no employees are represented by any labor union, labor organization or works council with respect to their employment with the Company
or any of its Subsidiaries. There are no and for the past three (3) years there have been no pending or threatened (in writing) activities
or proceedings to organize any current or former employees, officers, or directors of the Company or its Subsidiaries and there is no,
and for the past three (3) years there has been no, strike, lockout, picketing, handbilling, slowdown, concerted refusal to work overtime,
or work stoppage against or affecting the Company or any of its Subsidiaries pending or, to the Knowledge of the Company, threatened.
For the past three (3) years, no labor union, works council, other labor organization, or group of employees of the Company or its Subsidiaries
has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or
to the Knowledge of the Company threatened to be brought or filed with the National Labor Relations Board or any other labor relations
tribunal or authority. With respect to the transactions contemplated by this Agreement, the Company and each of its Subsidiaries has
satisfied any notice, consultation or bargaining obligations owed to its employees or their representatives under applicable Law, collective
bargaining agreement or other Contract. There are no, and for the past three (3) years there have been no, material labor grievances,
material unfair labor practice charges, material labor arbitrations or other material labor disputes pending, or, to the Knowledge of
the Company, threatened against the Company nor any of its Subsidiaries.
(b)
Neither the Company nor any of its Subsidiaries has incurred any material liability or other obligation under the Worker Adjustment
and Retraining Notification Act or any similar Law (the “WARN Act”).
(c) The
Company and its Subsidiaries are, and for the past three (3) years have been, in compliance in all material respects with all Laws respecting
labor, employment and employment practices, including all Laws and provisions thereof relating to fair employment practices, terms and
conditions of employment, collective bargaining, labor relations, unfair labor practices, reductions in force, plant closings and layoffs
(including the WARN Act), equal employment opportunity, discrimination, harassment, retaliation, civil rights, safety and health, disability
rights and benefits, employee benefits, workers’ compensation, immigration (including the completion of Forms I-9 for all employees
and the proper confirmation of employee visas), whistleblowing, restrictive covenants, pay transparency, employee trainings and notices,
background checks, paid or unpaid leave, classification of employees as exempt or non-exempt and classification of independent contractors,
wages and hours, COVID-19, affirmative action and unemployment insurance.
(d) Except
as would not result in material liability for the Company or its Subsidiaries: (i) the Company and its Subsidiaries have fully and timely
paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees, and other compensation that
have come due and payable to their current or former employees and independent contractors under applicable Law, Contract or Company
policy; and (ii) each individual who is providing or within the past three (3) years has provided services to the Company and its Subsidiaries
and is or was classified and treated as an independent contractor, consultant, leased employee, or other non-employee service provider
is and has been properly classified and treated as such for all applicable purposes.
(e) To
the Knowledge of the Company, no current or former employee or independent contractor of the Company or its Subsidiaries is in any material
respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary
duty, noncompetition agreement, nonsoliciation agreement, restrictive covenant or other obligation: (i) owed to the Company or its Subsidiaries;
or (ii) owed to any third party with respect to such person’s right to be employed or engaged by the Company or its Subsidiaries.
(f) To
the Knowledge of the Company, no current employee of the Company or its Subsidiaries with annualized compensation at or above $100,000,
intends to terminate his or her employment prior to the one (1) year anniversary of the Closing.
(g) For
the past three (3) years, no charges or complaints of sexual or other harassment or retaliation based on sex, race, or any other
protected characteristic have been made by or against any current or former officer, director or employee of the Company or any
Subsidiary. The Company and its Subsidiaries have promptly, thoroughly and impartially investigated all sexual harassment, or other
discrimination, retaliation or policy violation allegations of which any of them is aware. With respect to each such allegation with
potential merit, the Company and its Subsidiaries have taken prompt corrective action that is reasonably calculated to prevent
further improper action. The Company and its Subsidiaries do not reasonably expect any material liabilities with respect to any such
allegations and are not aware of any allegations relating to officers, directors, employees, contractors, or agents of the Company
and its Subsidiaries, that, if known to the public, would bring the Company and its Subsidiaries into material disrepute.
Section 4.16
Taxes.
(a) All
income and other material Tax Returns required to be filed by the Company or its Subsidiaries have been timely filed (taking into
account applicable extensions) and all such Tax Returns are true, correct and complete in all material respects.
(b) All income and other material Taxes required to be paid (whether or not shown on any Tax Return) by the Company and its Subsidiaries
have been duly and timely paid.
(c)
No Tax audit, examination or other proceeding with respect to a material amount of Taxes or a material Tax Return of the Company
or any of its Subsidiaries is ongoing, pending or has been threatened in writing.
(d) The Company and its
Subsidiaries have withheld (or collected) from amounts owing to (or received from) any employee, creditor or other Person all
material amounts of Taxes (including sales or other similar Taxes) required by Law to be withheld (or collected), and the Company
and its Subsidiaries have paid over to the proper Governmental Authority in a timely manner all such amounts required to have been
so paid over, and complied in all material respects with all applicable Laws relating to the collection and withholding of
Taxes.
(e) There
are no written assessments, deficiencies, adjustments or other claims set forth in writing with respect to any material Taxes or any
material Tax Return that have been asserted or assessed against the Company or its Subsidiaries that have not been fully paid or otherwise
resolved.
(f)
Neither the Company nor any of its Subsidiaries (or any predecessor thereof) has constituted either a “distributing corporation”
or a “controlled corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of
the Code (or so much of Section 356 of the Code as relates to Section 355 of the Code) during the two year period ending on
the date of this Agreement.
(g) Neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of
Treasury Regulation Section 1.6011-4(b)(2).
(h) There
are no Liens with respect to Taxes on any of the assets of the Company or its Subsidiaries, other than Permitted Liens.
(i)
Neither the Company nor any of its Subsidiaries has any liability for the Taxes of any Person (other than the Company or its Subsidiaries)
(i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), (ii) as a transferee
or successor, (iii) by operation of Law or (iv) by contract.
(j)
Neither the Company nor any of its Subsidiaries (i) is currently the beneficiary of any extension of time within which to file
any material Tax Return (excluding extensions granted automatically under applicable Law) or (ii) granted, requested or received a request
to extend or waive the statute of limitations with respect to the assessment or collection of Taxes that would remain outstanding after
the Closing Date.
(k) No written and unresolved claim has been received by the Company or any of its Subsidiaries from a Governmental Authority in respect
of Tax of a particular type in a jurisdiction where the Company or any of its Subsidiaries, as applicable, does not file Tax Returns of
such type that the Company or any of its Subsidiaries, as applicable, is or may be subject to taxation of such type by that jurisdiction.
(l)
Neither the Company nor any of its Subsidiaries will be required to include any material amount in, or exclude any material item
of deduction or loss from taxable income for any taxable period (or portion thereof) ending after the Closing Date, as a result of any
(i) adjustment under Section 481 of the Code (or any similar provision of state, local or foreign Law) for any taxable period
(or portion thereof) ending after the Closing Date, (ii) installment sale, intercompany transaction or open transaction disposition
made prior to the Closing outside the ordinary course of business, (iii) prepaid amount received or deferred revenue realized prior
to the Closing outside the ordinary course of business, (iv) change in (or incorrect) method of accounting for a taxable period ending
on or prior to the Closing Date made (or used) prior to the Closing, or (v) “closing agreements” described in Section 7121
of the Code (or any similar provision of state, local or foreign Law) or other written agreement with respect to Tax matters with any
Governmental Authority executed prior to the Closing.
(m)
Neither the Company nor any of its Subsidiaries has made a written request for an advance tax ruling or similar guidance that is
in progress or pending with any Governmental Authority with respect to any material Taxes.
(n) Neither the Company nor any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar agreement (other
than any such agreement solely between the Company and its existing Subsidiaries and customary commercial Contracts (or Contracts entered
into in the ordinary course of business) not primarily related to Taxes).
(o) Neither the Company nor any of its Subsidiaries has taken any action that could reasonably be expected to prevent the Merger,
together with the Stock Split and the Note Conversion, from qualifying for the Intended Income Tax Treatment, and to the Knowledge
of the Company, there are not any facts or circumstances that could reasonably be expected to prevent the Merger,
together with the Stock Split and the Note Conversion, from qualifying for the Intended Income Tax Treatment.
(p) Neither the Company nor any of its Subsidiaries has elected to defer any “applicable employment taxes” (as defined
in Section 2302(d)(1) of the CARES Act) or any other Tax obligations pursuant to or in connection with the CARES Act, any COVID-19 Measure
or any administrative or other guidance published with respect thereto by any Governmental Authority that has not been fully and timely
paid.
(q)
Neither the Company nor any of its Subsidiaries (i) has made an election pursuant to Section 965(h) of the Code or has any liability
for Taxes in respect of any amounts required to be included in income under Section 965 of the Code, (ii) is subject to income Tax in
a jurisdiction outside the country of its organization.
Section 4.17 Insurance. Schedule
4.17 sets forth a complete and accurate list, as of the date hereof, of each material insurance policy currently in effect to
which the Company or any of its Subsidiaries is a party or express named insured (collectively, the “Insurance
Policies”), together with a claims history for claims in excess of $1,000,000 since the Most Recent Balance Sheet Date.
The Company has made available to Acquiror true and accurate copies of each Insurance Policy. With respect to each such Insurance
Policy, except as set forth on Schedule 4.17 and except as would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect: (a) the Insurance Policy is valid, binding and in full force and effect and
enforceable in accordance with its terms with extended coverage, sufficient in amount to allow the Company or any of its
Subsidiaries (as applicable) to replace any of its material properties that might be damaged or destroyed, except for the Insurance
Policies that have expired under their terms in the ordinary course of business; (b) all premiums with respect thereto have
been paid; (c) neither the Company nor any of its Subsidiaries is in default under any such Insurance Policy; and (d) as
of the date hereof, no written notice of cancellation or nonrenewal has been received by the Company or any of its Subsidiaries with respect to such Insurance
Policy. No insurer has denied or disputed coverage of any material claim made by the Company or its Subsidiaries under any Insurance Policy
within the last twelve (12) months. None of the Company nor its Subsidiaries has any self-insurance or co-insurance programs.
Section 4.18
Real Property.
(a) Schedule 4.18(a) lists as of the date hereof: (i) all land, together with all buildings, structures, improvements and fixtures located thereon,
and all easements and other rights and interests appurtenant thereto, owned by the Company or its Subsidiaries (the “Owned
Real Property”); and (ii) all leasehold or subleasehold estates and other rights to use or occupy any land, buildings,
structures, improvements, fixtures or other interest in real property held by the Company or its Subsidiaries (the “Leased
Real Property”). Schedule 4.18(a) also identifies with respect to the Leased Real Property, each lease,
sublease, license and any other Contract under which such Leased Real Property is occupied or used by the Company or any of its Subsidiaries,
including the date of and legal name of each of the parties to such lease, sublease, license or other Contract, and each amendment, restatement,
modification, renewal, guaranty, supplement or other agreement thereto (together with the right to all security deposits and other amounts
and instruments deposited by or on behalf of the Company or any Subsidiary thereunder, the “Real
Property Leases”). The Company has delivered or made available to Acquiror, complete, accurate and correct copies of
all Real Property Leases, and in the case of any oral Real Property Lease, a written summary of the material terms of such Real Property
Lease.
(b) The
Company or its applicable Subsidiary, as applicable, has good and marketable indefeasible fee simple title to the Owned Real Property,
in each case free and clear of all Liens, except Permitted Liens. The Company and its Subsidiaries have not leased or otherwise granted
any Person the right to use or occupy any Owned Real Property or any portion thereof. Except as would not reasonably be expected, individually
or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor its Subsidiaries has
received written notice of any, and to the Knowledge of the Company, there is no, default under any restrictive covenants affecting the
Owned Real Property.
(c)
Except as would not reasonably be expected, individually or in the aggregate, to be materially adverse to the Company and its Subsidiaries,
taken as a whole, (i) the Company or its applicable Subsidiary has a legal, valid, binding and enforceable leasehold, subleasehold or
license interest (as applicable) in all Leased Real Property and (ii) all Real Property Leases under which the Company or any of its Subsidiaries
is a lessee or sublessee are in full force and effect and are enforceable in accordance with their respective terms, subject to the Enforceability
Exceptions. The Company’s, or the applicable Subsidiary’s, possession and quiet enjoyment of the Leased Real Property under
each Real Property Lease has not been disturbed, and to the Knowledge of the Company or the applicable Subsidiary there are no disputes
with respect to such Real Property Lease. None of the Company or any of its Subsidiaries has received any written notice of any, and,
to the Knowledge of the Company, there is no, breach or default under any such Real Property Lease and no event has occurred or circumstance
exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination,
modification or acceleration of rent under such Real Property Lease, except as would not reasonably be expected, individually or in the
aggregate, to be materially adverse to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries
has (i) exercised any termination rights with respect to any Real Property Lease, or (ii) received written notice from the landlord
under any Real Property Lease indicating that the landlord has exercised a termination right with respect to such Real Property Lease.
Neither the Company nor its Subsidiaries have collaterally assigned or granted any other security interest in any Real Property Lease,
or any interest therein. Neither the Company nor any of its Subsidiaries has subleased, licensed or otherwise granted any Person the right
to use or occupy any Leased Real Property or any portion thereof.
(d) The interests of the Company
and its Subsidiaries in the Real Property constitutes all interests in real property (i) currently used, occupied or held for use
in connection with the business of the Company and its Subsidiaries as presently conducted and (ii) necessary for the continued
operation of the business of the Company and its Subsidiaries.
(e) There
do not exist any actual, pending, or, to the Knowledge of the Company, threatened condemnation, expropriation or eminent domain proceedings
that affect any interests of the Company or any of its Subsidiaries in the Real Property or any part thereof, and none of the Company
nor its applicable Subsidiary have received any notice, oral or written, of the intention of any Governmental Authority or other Person
to take or use any interest in the Real Property or any part thereof or interest therein. Neither the Company nor any of its Subsidiaries
have received any currently outstanding and uncured written notice alleging that any Real Property or the use or occupation thereof is
in violation of any applicable Laws in any material respect.
(f)
Neither the Company nor any of its Subsidiaries is a party to any purchase option, right of first refusal or other contractual
right or obligation to sell, assign or dispose of its interests in the Real Property, and there are no outstanding options, rights of
first offer or rights of first refusal to purchase or lease the Owned Real Property or any portion thereof or interest therein. Neither
the Company nor any Subsidiary is currently party to any agreement to purchase any real property or interest therein.
Section 4.19
Intellectual Property and IT Security.
(a)
Schedule 4.19(a) contains a complete and accurate list of all Intellectual Property Registrations included in the Owned
Intellectual Property as of the date of this Agreement and as of the Closing. There is no Action pending, or, to the Knowledge of the
Company, threatened in writing, challenging the validity, enforceability, ownership, registration, or use of any Intellectual Property
Registrations or other Owned Intellectual Property.
(b) Except
as set forth in Schedule 4.19(b), the Company or its applicable Subsidiary (i) is the sole and exclusive owner of all
right, title, and interest in and to the Owned Intellectual Property, and (ii) either owns or has the right to use all other Intellectual
Property that is material to the conduct of their respective businesses as currently conducted, in each case of (i) and (iii), free and
clear of any Liens other than Permitted Liens. All Persons who have participated in the invention, creation, authorship, or development
of any material Intellectual Property for or on behalf of the Company or its Subsidiaries have executed and delivered to the Company
or its Subsidiary, a valid and enforceable written agreement (x) providing for the non-disclosure by such Person of any confidential
information of or used by the Company and its Subsidiaries and (y) providing for the present assignment by such Person to the Company
or its Subsidiary of all right, title, and interest in all Intellectual Property arising out of such Person’s employment by, engagement
by or contract with the Company or a Subsidiary, except where ownership of such Intellectual Property would vest in the Company or a
Subsidiary by operation of law. No Governmental Authority or academic institution owns or retains any rights or licenses in or to any
material Owned Intellectual Property.
(c) The
execution, delivery and performance by the Company of this Agreement and the Transaction Agreements to which it is or will be a party
and the consummation by the Company of the transactions contemplated hereby and thereby will not result in the loss, termination or impairment
of any right of the Company or any of its Subsidiaries in or to any material Intellectual Property.
(d) Except as would not reasonably be expected, individually or in the aggregate, to be materially adverse to the Company and its Subsidiaries,
taken as a whole, (i) the conduct of the business of the Company and its Subsidiaries as currently conducted is not infringing upon,
misappropriating or otherwise violating any Intellectual Property
rights of any third party, and has not infringed upon, misappropriated or otherwise violated any Intellectual Property rights of any third
party in the past three (3) years, (ii) to the Knowledge of the Company, no third party is, or has been in the past three (3) years,
infringing upon, misappropriating or otherwise violating any material Owned Intellectual Property and (iii) the Company and its Subsidiaries
have not received from any Person any unresolved written notice in the past three (3) years that the Company or any of its Subsidiaries
is infringing upon, misappropriating or otherwise violating any Intellectual Property rights of any Person (including any offers to take
a license or cease and desist letters).
(e) The
Company and its Subsidiaries have in place commercially reasonable measures to protect and maintain the confidentiality of any material
trade secrets included in the Owned Intellectual Property or otherwise used by the Company. To the Knowledge of the Company, there has
been no unauthorized access, use or disclosure of any such material trade secrets included in the Owned Intellectual Property.
(f)
The Company and its Subsidiaries are in material compliance with all the terms and conditions of all licenses applicable to all
Open Source Software used in any material software included in Owned Intellectual Property. To the Knowledge of the Company, no proprietary
Software owned or purported to be owned by the Company or its Subsidiaries contains, incorporates, is derived from, or is linked to any
Open Source Software that would require, based on the current use or distribution of such Software, the licensing or making available
of material source code for such Software, including for the purposes of making derivative works. No Person has any present or contingent
right or license to access any material proprietary source code owned or purported to be owned by the Company or its Subsidiaries, other
than employees or service providers working for the Company or its Subsidiaries who are subject to reasonable written confidentiality
agreements.
(g) The
Company and its Subsidiaries have in place commercially reasonable measures to protect the confidentiality, integrity, availability and
security of the IT Systems, and commercially reasonable back-up and disaster recovery procedures for the continued operation of their
businesses in the event of a failure of the IT Systems. The Company and its Subsidiaries have used reasonable best efforts to prevent
the introduction into the IT Systems, any malware, ransomware, disabling codes or instructions, spyware, Trojan horses, worms, viruses
or other software routines that would permit or cause unauthorized access to, or disruption, impairment, disablement, or destruction
of the IT Systems, and to the Knowledge of the Company, the IT Systems do not contain any of the foregoing. The IT Systems have not suffered
any critical failures, errors, breakdowns or other adverse events that have caused any material disruption in the operation of the business
of the Company and its Subsidiaries in the past three (3) years. The IT Systems are in good working order in all material respects and
are sufficient in all material respects for the existing needs of the business of the Company and its Subsidiaries.
(h) The Company and its Subsidiaries are in material compliance, and for the past three (3) years have been in material compliance,
with all applicable Data Protection Requirements, including all such requirements regarding the collection, retention, storage, security,
disclosure, transfer, disposal, use, or other Processing of Personal Data. There is no Action pending, or to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries with respect to their collection, retention, storage, security, disclosure,
transfer, disposal, use, or other processing of any Personal Data.
(i)
For the past three (3) years, to the Knowledge of the Company, the Company and its Subsidiaries have not suffered any security
breach or incident or any other event resulting in any unauthorized or unlawful access, acquisition, exfiltration, manipulation, erasure,
loss, use, disclosure or other Processing that compromised the confidentiality, integrity, availability or security of Personal Data or
the IT Systems, any unauthorized or unlawful Processing of Personal Data or the IT Systems, or that triggered any reporting requirement under any
breach notification Law. To the Knowledge of the Company, no service provider (in the course of providing services for or on behalf of
the Company and its Subsidiaries) has suffered any security breach or incident that would reasonably be expected, individually or in the
aggregate, to have a Company Material Adverse Effect.
Section 4.20
Environmental Matters.
(a) The
Company and its Subsidiaries are, and for the last three (3) years have been, in compliance with all Environmental Laws, which includes
and has included complying with all Permits required under Environmental Laws, in each case except where such failure to be, or to have
been, in compliance with such Environmental Laws or Permits as has not, and would not, reasonably be expected, individually or in the
aggregate, to be materially adverse to the Company and its Subsidiaries, taken as a whole.
(b) Each
Permit required under Environmental Laws for the development, design, construction, engineering, installation, permitting, commissioning,
testing, supply, operation (including commercial operation), ownership, use and/or maintenance of any projects or facilities in development
by the Company or any of its Subsidiaries has been obtained by the Company or its Subsidiaries, or to the Knowledge of the Company, will
be obtained in due course and without material unanticipated cost or material adverse conditions prior to the time the same is required
to be obtained under Environmental Laws.
(c) In the last three (3) years (or earlier if unresolved), none of the Company or its Subsidiaries has received any notice, report,
Governmental Order, directive or other information from any Person regarding any actual or alleged violation of, or liability arising
under, any Environmental Law, except for any such matter which, individually or in the aggregate, has not been and would not reasonably
be expected to be materially adverse to the Company and its Subsidiaries, taken as a whole.
(d) Except
as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the Company and its Subsidiaries,
taken as a whole, there are no Actions pending against or, to the Knowledge of the Company, threatened against the Company or any of
its Subsidiaries alleging, any violations of or liability under any Environmental Law.
(e) Neither the Company nor any of its Subsidiaries is subject to any Governmental Order relating to the Company’s or any of
its Subsidiaries’ compliance with Environmental Laws or the investigation, sampling, monitoring, treatment, remediation, removal
or cleanup of Hazardous Materials, except as would not, individually or in the aggregate, reasonably be expected to be materially adverse
to the Company or its Subsidiaries, taken as a whole.
(f)
Neither the Company nor any of its Subsidiaries has manufactured, distributed, treated, stored, disposed of, arranged for or permitted
the disposal of, transported, handled, Released, or exposed any Person to, or owned or operated any property or facility which is or was
contaminated by, any Hazardous Materials, except, in each case, as has not given or would not give rise to any liability under any Environmental
Laws that would reasonably be expected to be materially adverse to the Company or its Subsidiaries, taken as a whole.
(g) Neither
the Company nor any of its Subsidiaries has become subject to, provided an indemnification with respect to, retained or assumed, by contract
or operation of law, any liabilities or obligations of any other Person arising under Environmental Law or relating to Hazardous Materials,
except as would not, reasonably be expected to be materially adverse to the Company and its Subsidiaries, taken as a whole.
(h) There are no presently existing conditions, events or circumstances relating to the facilities, properties or operations of the
Company or its Subsidiaries would reasonably be expected to prevent, hinder or limit continued compliance with Environmental Laws or
give rise to liabilities under such Environmental Laws, except in each case as would not, reasonably be expected to be materially adverse
to the Company and its Subsidiaries, taken as a whole.
(i) The Company and its
Subsidiaries have made available to Acquiror all environmental audits, assessments, studies or reports relating to the current or
former properties, facilities or operations of the Company and its Subsidiaries and all other documents materially bearing on the
Company’s and its Subsidiaries’ compliance with or liability under Environmental Laws, in each case, which are in their
possession or under their reasonable control.
Section 4.21
Brokers’ Fees. Other than as set forth on Schedule 4.21, no broker, finder, financial advisor, investment
banker or other Person is entitled to any brokerage fee, finders’ fee or other similar fee, commission or other similar payment
in connection with the Transactions based upon arrangements made by or on behalf of the Company, any of its Subsidiaries or any of their
Affiliates.
Section 4.22
Related Party Transactions. Except for the Contracts set forth on Schedule 4.22 or Contracts that will be terminated
prior to Closing without any liability to the Company or its Subsidiaries continuing following the Closing, there are no Affiliate Agreements.
Section 4.23
International Trade; Anti-Corruption.
(a) The
Company and its Subsidiaries are and for the past three (3) years have been in compliance with all applicable Sanctions Laws and Trade
Control Laws. Neither the Company, nor any of its Subsidiaries, nor any of their respective directors or officers, nor, to the Knowledge
of the Company, any of their respective employees, agents or other third-party representatives acting on behalf of the Company or any
of its Subsidiaries, is currently, or has been at any time in the past three (3) years: (i) a Sanctioned Person, (ii) engaged,
directly or indirectly, in any dealings or transactions on behalf of, with, or otherwise involving any Sanctioned Person in violation
of Sanctions Laws, or (iii) otherwise engaged, directly or indirectly, in any dealings or transactions in violation of applicable
Sanctions Laws or Trade Control Laws. Neither the Company nor any of its Subsidiaries (y) has assets, operations or business dealings
located in, or otherwise directly or indirectly derives revenue from investments, activities, or transactions in or with any Sanctioned
Country, or (z) directly or indirectly derives revenues from investments, activities or transactions in or with, any Sanctioned
Person. In the past three (3) years, neither the Company nor any of its Subsidiaries has exported, reexported, or transferred (in-country)
any products, services, technology, technical data, or any other item for which a license, approval, license exception, registration,
or similar authorization is or was required under applicable Trade Control Laws or Sanctions Laws or, to the Knowledge of the Company,
by any other Governmental Authority.
(b) The
Company and its Subsidiaries are and for the past three (3) years have been in compliance in all material respects with all Anti-Corruption
Laws. Neither the Company nor any of its Subsidiaries, nor any of their respective directors or officers, nor to the Knowledge of the
Company, any of their respective employees, agents or other third-party representatives acting on behalf of the Company or any of its
Subsidiaries, has in the past three (3) years (i) made any unlawful payment or unlawfully given, offered, promised, or authorized
or agreed to give, solicited, or received, any money or thing of value, directly or indirectly, to or from any Government Official, any
political party or official thereof or any candidate for political office; any member of any Governmental Authority, any private individual
or commercial entity (including employees, agents, directors and officers of such commercial entity), or any other Person in any such
case while knowing that all or a portion of such money or thing of value may be given, offered, promised, or authorized or agreed to
be given, solicited, or received, directly or indirectly, to any Person or member of any Governmental Authority
or any candidate for political office for the purpose of any of the following: (x) influencing any action or decision of such Person,
in such Person’s official or commercial capacity, including a decision to fail to perform such Person’s official or commercial
function, (y) inducing such Person to use such Person’s influence with any Governmental Authority, private individual or commercial
entity to affect or influence any act or decision of such Governmental Authority, private individual or commercial entity to assist the
Company or any of its Subsidiaries in obtaining or retaining business for, with, or directing business to, any Person, or (z) where
such payment would constitute a bribe, kickback or illegal or improper payment to assist the Company or any of its Subsidiaries in obtaining
or retaining business for, with, or directing business to, any Person, or (ii) otherwise violated any Anti-Corruption Laws. The Company
and its Subsidiaries have maintained accurate books and records, practices and internal controls in compliance with Anti-Corruption Laws
and have had in place practices and internal controls reasonably designed to ensure that receipts and expenses were accurately recorded
and were based on accurate and sufficient supporting documentation.
(c) In the past three (3) years, (i) there has been no Action pending or, to the Knowledge of the Company, threatened, against
the Company, or any of its Subsidiaries, or, to the Knowledge of the Company, any of their respective officers, directors, employees or
agents, that relates to an actual or potential violation of Sanctions Laws, Trade Control Laws, or Anti-Corruption Laws; and (ii) neither
the Company nor any of its Subsidiaries has received from any Governmental Authority or any other Person any notice, inquiry, or internal
or external allegation; made any voluntary or involuntary disclosure to a Governmental Authority; conducted any internal investigation
or audit concerning, or has any Knowledge of any actual or potential violation or wrongdoing by the Company, its Subsidiaries, or any
of their respective officers, directors, employees or agents, in each case of this Section 4.23(c) related to Trade Control Laws,
Sanctions Laws, or Anti-Corruption Laws. The Company and its Subsidiaries have instituted and, at all times in the past three (3) years,
maintained and enforced policies, procedures and internal controls reasonably designed to promote compliance by the Company, its Subsidiaries,
and their respective officers, directors, employees, and agents, with Anti-Corruption Laws, Sanctions Laws, and Trade Control Laws.
(d) Neither the Company nor any of its Subsidiaries is a “TID U.S. Business” as defined in 31 CFR § 800.248. Neither
the Company nor any of its Subsidiaries is currently or has ever engaged in any “covered transaction” as defined in 31 CFR
§ 800.213.
Section 4.24
Top Customers and Top Suppliers.
(a) Schedule 4.24(a) sets forth a true, correct and complete list of the names of the top ten (10) customers by dollar
sales volume paid by such customers to the Company and its Subsidiaries for the year ended December 31, 2022 (each, a “Top
Customer”). None of the Top Customers has (i) terminated or given written notice to the Company or any of its Subsidiaries
expressly stating its intention to terminate its relationship with the Company or any of its Subsidiaries, (ii) given written notice
to the Company or any of its Subsidiaries expressly stating that, following the date of this Agreement, it plans to reduce substantially
the quantity of products or services that it purchases from the Company or any of its Subsidiaries or (iii) given written notice
to the Company or any of its Subsidiaries expressly stating that, following the date of this Agreement, it desires to renegotiate its
Contract with the Company or any of its Subsidiaries or the terms on which the Company or any of its Subsidiaries provides services to
such Top Customer.
(b) Schedule 4.24(b) sets forth a true, correct and complete list of the names of the top ten (10) suppliers by dollar
sales volume paid by the Company and its Subsidiaries to such supplier for the year ended December 31, 2022 (each, a “Top
Supplier”). None of the Top Suppliers has (i) terminated or given written notice to the Company or any of its Subsidiaries
expressly stating its intention to terminate its relationship with the Company or any of its
Subsidiaries, (ii) given written notice to the Company or any of its Subsidiaries expressly stating that, following the date of this
Agreement, it plans to reduce substantially the quantity of products or services that it provides to the Company or any of its Subsidiaries
or (iii) given written notice to the Company or any of its Subsidiaries expressly stating that, following the date of this Agreement,
that it desires to renegotiate its Contract with the Company or any of its Subsidiaries or the terms on which the Company or any of its
Subsidiaries receives services or products from such Top Supplier.
Section 4.25 Acquisitions
and Acquisition Contracts. Except as set forth on Schedule 4.25, in the past three (3) years, no written dispute, demand,
claim (including any claim for indemnification) or other Action has been made in writing or initiated in writing or threatened in writing
by or against the Company or any of its Subsidiaries, under any Contract to which the Company or its Subsidiaries are parties that relates
to any acquisition (whether by merger, sale of stock, sale of assets or otherwise) by the Company or any of its Subsidiaries of a business,
business unit or Person (each, an “Acquisition”)
(an “Acquisition Contract”). As of the date hereof,
except as set forth in Schedule 4.25 , there are no “earn-outs,” contingent payment obligations or other similar obligations
of the Company or any of its Subsidiaries in respect of any Acquisition under any Acquisition Contract.
Section 4.26 Personal
Property. The Company and its Subsidiaries have good and marketable title to, or a valid and enforceable leasehold interest in or
right to use, all material personal property and other material property and assets owned, used or held for use by the Company and its
Subsidiaries in connection with the business of the Company and/or its Subsidiaries or reflected in the Most Recent Balance Sheet (the
“Personal Property”), other than Personal Property
disposed of in the ordinary course of business after the Most Recent Balance Sheet Date, in each case free and clear of all Liens, except
for Permitted Liens. The Permitted Liens would not reasonably be expected, individually or in the aggregate, to materially adversely
affect or interfere with the current use or operation of the Personal Property.
Section 4.27 Condition
of Assets. The Real Property, including all buildings, improvements, parking facilities, sidewalks, storm drainage systems, roofs,
plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping,
irrigation systems and all structural components (collectively, the “Improvements”),
are in good condition, order and repair in all material respects; there exists no structural or other material defects or damages to
the Real Property or the Improvements, whether latent or otherwise. The tangible Personal Property has been maintained in the ordinary
course of business, is in good operating condition, subject to normal wear and tear, and is suitable for the purposes for which it is
currently used.
Section 4.28 Restrictions
on Business Activities. Except as disclosed in Schedule 4.28, there is no agreement, commitment, judgment, injunction, order
or decree binding upon the Company or any of its Subsidiaries or its or their assets or to which Company or any of its Subsidiaries is
a party which has or could reasonably be expected to have the effect of prohibiting or impairing in any material respect: any business
practice of the Company or any of its Subsidiaries, any acquisition of property by Company or any of its Subsidiaries or the conduct
of business by Company or any of its Subsidiaries as currently conducted.
Section 4.29 Certain Provided Information. The information relating to the Company and its Subsidiaries supplied or to be supplied by
the Company or its Affiliates or Representatives for inclusion in the Registration Statement and Proxy Statement will not, as of the date
on which the Registration Statement and Proxy Statement, or any amendment or supplement thereto is filed with the SEC, is declared effective
by the SEC, is first distributed to the holders of Acquiror Common Stock and Acquiror Warrants or at the time of a Special Meeting (as
defined below), contain any statement which, at the time and in the light of the circumstances under which it is made,
is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements
therein not false or misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect
to: statements made or incorporated by reference therein based on information supplied by Acquiror for inclusion or incorporation by reference
in the Registration Statement and Proxy Statement or any SEC Reports.
Section 4.30 Stock
Issued in Transactions. When shares of Company Common Stock are issued in the Merger as contemplated by this Agreement, such shares
of Company Common Stock will be duly authorized, validly issued and non-assessable, and will be received by the Acquiror Stockholders
to whom they are issued free and clear of all Liens or restrictions on transfer, other than (i) restrictions on transfer imposed by this
Agreement, the Company Organizational Documents and the Lockup Agreements, and (ii) restrictions on transfer imposed by applicable Securities
Laws.
Section 4.31 No
Other Representations. Except as provided in this Article IV (as modified by the Schedules), neither the Company, nor any
Company Stockholder, nor their respective Representatives, nor any other Person has made, or is making, any representation or warranty
whatsoever in respect of the Company, the Company’s Subsidiaries or any Company Stockholder. Without limiting the generality of
the foregoing, except as expressly set forth in this Agreement, neither the Company, nor any Company Stockholder, nor any of their respective
Representatives, nor any other Person has made or makes, any representation or warranty, whether express or implied, with respect to
any projections, forecasts or estimates or budgets made available to Acquiror, its Affiliates or any of their respective Representatives
of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any
component thereof) of the Company, whether or not included in any management presentation or in any other information made available
to Acquiror, its Affiliates or any of their respective Representatives, and that any such representations or warranties are expressly
disclaimed.
Article
V
Representations and Warranties of Acquiror
Except
as set forth in the Schedules to this Agreement or in the SEC Reports filed or furnished by Acquiror prior to the date of this Agreement
(excluding (x) any disclosures in such SEC Reports under the headings “Risk Factors,” “Forward-Looking Statements”
or “Qualitative Disclosures About Market Risk” or other disclosures that are predictive, cautionary or forward-looking in
nature and (y) any exhibits or other documents appended thereto), Acquiror represents and warrants to the Company Parties as follows:
Section 5.01
Corporate Organization. Acquiror is duly incorporated or formed and is validly existing as a corporation in good standing
under the Laws of Delaware and has the corporate power and authority to own, lease or operate its assets and properties and to conduct
its business as it is now being conducted. Acquiror has made available to the Company true and correct copies of the Acquiror Organizational
Documents in effect as of the date hereof. Acquiror is, and at all times has been, in compliance in all material respects with all restrictions,
covenants, terms and provisions set forth in the Acquiror Organizational Documents. Acquiror is duly licensed, registered or qualified
and in good standing (or the equivalent thereof) as a foreign corporation in all jurisdictions in which its ownership of property or the
character of its activities is such as to require it to be so licensed, registered or qualified.
Section 5.02
Subsidiaries. Except as set forth in Schedule 5.02, Acquiror has no direct or indirect Subsidiaries or participations
in joint ventures or other entities, and does not own, directly or indirectly, any capital stock or other interests or investments (whether
equity or debt) in any Person, whether incorporated or unincorporated.
Section 5.03
Due Authorization.
(a) Acquiror
has all requisite corporate power and authority to execute and deliver this Agreement and each other Transaction Agreement to which it
is or will be a party and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance of this Agreement and such other Transaction Agreements and the consummation of
the transactions contemplated hereby and thereby have been duly, validly and unanimously authorized and approved by the board of directors
of Acquiror and no other corporate proceeding on the part of Acquiror is necessary to authorize this Agreement or such other Transaction
Agreements or Acquiror’s performance hereunder or thereunder (except that obtaining the Required Acquiror Stockholder Approval
is a condition to the consummation of the Merger). This Agreement has been, and each such other Transaction Agreement to which Acquiror
will be party will be, duly and validly executed and delivered by Acquiror and, assuming due authorization and execution by each other
Party hereto and thereto, this Agreement constitutes, and each such other Transaction Agreement to which Acquiror will be party, will
constitute a legal, valid and binding obligation of Acquiror, enforceable against Acquiror in accordance with its terms, subject to the
Enforceability Exceptions. The minute books of Acquiror contain true, complete and accurate records of all meetings and consents in lieu
of meetings of its board of directors (and any committees thereof), similar governing bodies and holders of Equity Securities. Copies
of such records of Acquiror have been heretofore made available to the Company or its counsel.
(b) The
only votes of any of Acquiror’s capital stock necessary in connection with the entry into this Agreement by Acquiror, the consummation
of the transactions contemplated hereby, including the Closing, and the approval of the Acquiror Stockholder Matters are as set forth
on Schedule 5.03(b).
(c) At
a meeting duly called and held, the board of directors of Acquiror has: (i) determined that this Agreement and the Transactions
are fair to and in the best interests of the Acquiror Stockholders, (ii) determined that the fair market value of the Company is
equal to at least 80% (eighty percent) of the amount held in the Trust Account (less any deferred underwriting commissions and taxes
payable on interest earned on the Trust Account) as of the date hereof, (iii) approved the Transactions as a Business Combination
and (iv) resolved to recommend to the Acquiror Stockholders’ approval of each of the Acquiror Stockholder Matters.
Section 5.04
No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section
5.07, and subject to obtaining the Required Acquiror Stockholder Approval, the execution, delivery and performance of this Agreement
and any other Transaction Agreement to which Acquiror is or will be a party, and the consummation of the transactions contemplated hereby
and thereby do not and will not (a) conflict with or violate any provision of, or result in the breach of the Acquiror Organizational
Documents, (b) conflict with or result in any violation of any provision of any Law or Governmental Order binding on or applicable
to Acquiror, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default
under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment
under, accelerate the performance required by, or result in the acceleration or trigger of any payment, posting of collateral (or right
to require the posting of collateral), time of payment, vesting or increase in the amount of any compensation or benefit payable pursuant
to, any of the terms, conditions or provisions of any Contract to which Acquiror is a party, or (d) result in the creation of any
Lien upon any of the properties or assets of Acquiror (including the Trust Account), except in the case of each of clauses (b) through
(d) as would not reasonably be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect.
Section 5.05 Compliance. Acquiror has materially complied
and is in material compliance with all Law applicable to the conduct of its business, or the ownership or operation of its business. No
written notice of non-compliance with any material Law has been received by Acquiror, and Acquiror has no Knowledge of any such notice
related to Acquiror delivered to any other Person.
Section 5.06 Litigation
and Proceedings. Since September 30, 2023, there has been no pending or, to the Knowledge of Acquiror, threatened (in writing) Actions
by or against Acquiror that, if adversely decided or resolved, had, individually or in the aggregate, an Acquiror Material Adverse Effect.
There is no Governmental Order imposed upon Acquiror that has had, individually or in the aggregate, an Acquiror Material Adverse Effect.
Acquiror is not party to any settlement or similar agreement regarding any of the matters set forth in the two preceding sentences that
contains any ongoing obligations, restrictions or liabilities (of any nature) that has had, individually or in the aggregate, an Acquiror
Material Adverse Effect.
Section 5.07 Governmental
Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Company and its Subsidiaries
contained in this Agreement, no action by, consent, approval, Permit or authorization of, or designation, declaration or filing with,
any Governmental Authority or notice, approval, consent waiver or authorization from any Governmental Authority is required on the part
of Acquiror with respect to Acquiror’s execution, delivery and performance of this Agreement and the Transaction Agreements to
which it is a party and the consummation of the transactions contemplated hereby and thereby, except for (i) obtaining the consents
of, or submitting notifications, filings, notices or other submissions to, the Governmental Authorities listed on Schedule 5.07,
(ii) the filing with the SEC of (A) the Proxy Statement (and the expiration of the waiting period in Rule 14a-6(a) under the
Exchange Act or, in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the
completion of the review by the SEC) and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required
in connection with this Agreement, the Transaction Agreements or the transactions contemplated hereby or thereby, (iii) the filing
of the Certificate of Merger in accordance with the DGCL and the DLLCA, (iv) compliance with and filings under the HSR Act, and (v) any
actions, consents, approvals, Permits or authorizations, designations, declarations or filings, the absence of which would not reasonably
be expected to have, individually or in the aggregate, an Acquiror Material Adverse Effect.
Section 5.08 Trust
Account.
(a) As
of the date hereof there is at least $41,804,576 held in a trust account (the “Trust
Account”), maintained by Continental Stock Transfer & Trust Company, a New York corporation, acting as trustee
(the “Trustee”), pursuant to the Investment Management
Trust Agreement, dated January 14, 2021, by and between Acquiror and the Trustee on file with the SEC Reports of Acquiror as of the date
of this Agreement (the “Trust Agreement”). Prior
to the Closing, none of the funds held in the Trust Account has been, nor may be, released except in accordance with the Trust Agreement,
Acquiror Organizational Documents and Acquiror’s final prospectus dated January 19, 2021. Amounts in the Trust Account are invested
in United States Government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment
Company Act of 1940, as amended. Acquiror has performed all material obligations required to be performed by it to date under, and is
not in material default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement
and the Trust Account, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or
breach thereunder. There are no Actions pending, or to the Knowledge of Acquiror, threatened with respect to the Trust Account or the
funds contained therein. At the Effective Time, the obligations of Acquiror to dissolve or liquidate pursuant to the Acquiror Organizational
Documents shall terminate, and, as of the Effective Time, Acquiror shall have no obligation whatsoever pursuant to the Acquiror Organizational
Documents to dissolve and liquidate the assets of Acquiror by reason of the Transactions. From and after the
Effective Time, no stockholder of Acquiror shall be entitled to receive any amount from, or any amount previously held in, the Trust Account
except to the extent such stockholder shall have elected to tender its shares of Acquiror Class A Common Stock for redemption pursuant
to the Acquiror Stockholder Redemption prior to such time. The Trust Agreement is in full force and effect and is a legal, valid and binding
obligation of Acquiror and the Trustee, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated,
rescinded, amended or supplemented or otherwise modified, in any respect, and, to the Knowledge of Acquiror, no such termination, repudiation,
rescission, amendment, supplement or modification is contemplated or anticipated. There are no side letters or other Contracts, arrangements
or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust
Agreement in the SEC Reports to be inaccurate or (ii) entitle any Person (other than stockholders of Acquiror who shall have elected
to redeem their shares of Acquiror Class A Common Stock pursuant to the Acquiror Stockholder Redemption, the underwriters of Acquiror’s
initial public offering in respect of their Deferred Discount (as defined in the Trust Agreement) or any Taxes payable) to any portion
of the proceeds in the Trust Account.
(b) As
of the date hereof, Acquiror has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be
satisfied or funds available in the Trust Account will not be available to Acquiror on the Closing Date. As of the date hereof, Acquiror
does not have any Contract, arrangement or understanding to enter into or incur, any Contract or other obligations with respect to or
under any Indebtedness.
Section 5.09 Real
Property; Personal Property. Acquiror does not own or lease any real property or personal property.
Section 5.10 Intellectual Property. Acquiror does not own, license, or otherwise have any right, title or interest in any Intellectual
Property.
Section 5.11 Brokers’
Fees. Other than as set forth on Schedule 5.11, no broker, finder, investment banker or other Person is entitled to any
brokerage fee, finders’ fee, underwriting fee, deferred underwriting fee, commission or other similar payment in connection with
the transactions contemplated by this Agreement or any other potential Business Combination transaction considered or engaged in by or
on behalf of Acquiror based upon arrangements made by Acquiror or any of its Affiliates or otherwise in respect of which Acquiror or
any of its Affiliates may have any liability or obligation.
Section 5.12 SEC
Reports; Financial Statements; Sarbanes-Oxley Act; Undisclosed Liabilities.
(a) Acquiror
has filed or furnished in a timely manner all required registration statements, reports, schedules, forms, statements and other documents
required to be filed or furnished by it with the SEC (collectively, including any statements, reports, schedules, forms, statements and
other documents required to be filed or furnished by it with the SEC subsequent to the date of this Agreement, each as it has been amended
since the time of its filing and including all exhibits thereto, the “SEC
Reports”). None of the SEC Reports, as of their respective dates (or if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing) contains 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 made therein, in light of the circumstances under which
they were made, not misleading. The audited financial statements and unaudited interim financial statements (including, in each case,
the notes and schedules thereto) included in the SEC Reports complied as to form in all material respects with the published rules and
regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved
(except as may be indicated therein or in the notes thereto) and fairly present (subject,
in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete
footnotes as permitted by Form 10-Q of the SEC) in all material respects the financial position of Acquiror as of the respective dates
thereof and the results of their operations and cash flows for the respective periods then ended. Acquiror has no material off-balance
sheet arrangements that are not disclosed in the SEC Reports.
(b) Acquiror
has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure
controls and procedures are designed to ensure that material information relating to Acquiror is made known to Acquiror’s principal
executive officer and its principal financial officer. To the Knowledge of Acquiror, such disclosure controls and procedures are effective
in timely alerting Acquiror’s principal executive officer and principal financial officer to material information required to be
included in Acquiror’s financial statements included in Acquiror’s periodic reports required under the Exchange Act.
(c) Acquiror
has established and maintains systems of internal accounting controls that are designed to provide reasonable assurance that (i) all
transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary
to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for Acquiror’s
assets. Acquiror maintains books and records of Acquiror in the ordinary course of business that are accurate and complete and reflect
the revenues, expenses, assets and liabilities of Acquiror in all material respects.
(d) Acquiror
has not identified or been made aware of any, and to the Knowledge of Acquiror, there is no (i) “significant deficiency”
in the internal controls over financial reporting of Acquiror, (ii) “material weakness” in the internal controls over financial
reporting of Acquiror or (iii) fraud, whether or not material, that involves management or other employees of Acquiror who have
a significant role in the internal controls over financial reporting of Acquiror.
(e) To
the Knowledge of Acquiror, as of the date hereof, there are no outstanding SEC comments from the SEC with respect to the SEC Reports.
To the Knowledge of Acquiror, none of the SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation
as of the date hereof.
(f)
Other than as set forth on Schedule 5.12(f), each director and executive officer of Acquiror has filed with the SEC
on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder.
(g) There
are no outstanding loans or other extensions of credit made by Acquiror to any executive officer (as defined in Rule 3b-7 under the Exchange
Act) or director of Acquiror.
Section 5.13 Business
Activities.
(a) Acquiror
was formed for the purpose of effecting a Business Combination with one or more businesses or entities. It completed an initial public
offering of units consisting of Acquiror Class A Common Stock and Acquiror Warrants in January 2021, and placed certain of the net proceeds
of its initial public offering and simultaneous private placement of Acquiror Warrants in the Trust Account. Acquiror has never conducted
any business activities except raising funds through sales of securities, causing its securities to be listed on Nasdaq, complying with
applicable regulatory requirements of the SEC, Nasdaq, and State of Delaware, seeking to find a company or companies with which to complete
an initial business combination and negotiating the terms of the Transactions. Except as set forth in the Acquiror Organizational Documents,
there is no agreement, commitment, or Governmental Order binding upon Acquiror or to which Acquiror is a party which
has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Acquiror or any acquisition
of property by Acquiror or the conduct of business by Acquiror as currently conducted or as contemplated to be conducted as of the Closing
other than such effects, individually or in the aggregate, which would not reasonably be expected to have an Acquiror Material Adverse
Effect. Acquiror has never engaged in any business activities, has no assets, liabilities or obligations of any nature other than those
incident to its formation and pursuant to this Agreement and any other Transaction Agreement to which it is a party and has never generated
any revenues or expenses other than expenses related to the Transactions.
(b) Acquiror
does not own or have a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation
, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Transactions, Acquiror has no interests,
rights, obligations or liabilities with respect to, or is party to, bound by or has its assets or property subject to, in each case whether
directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination.
(c) Except for this Agreement and the other Transaction Agreements or as set forth on Schedule 5.13(c), Acquiror is not,
and at no time has been, party to any Contract with any Person that would require payments by Acquiror after the date hereof in excess
of $250,000 in the aggregate.
(d) As
of the date hereof, Acquiror has no liabilities or obligations, except for liabilities or obligations (i) reflected or reserved
for on Acquiror’s consolidated balance sheet as of June 30, 2023 or disclosed in the notes thereto, (ii) that have arisen
since the date of Acquiror’s consolidated balance sheet as of December 31, 2022 in the ordinary course of the operation of business
of Acquiror, disclosed in the Schedules, included as set forth on Schedule 5.13(c) and as set forth on Schedule 5.13(d)
or (iii) incurred in connection with or contemplated by this Agreement and/or the Transactions, including with respect to professional
fees for legal and accounting advisors incurred by Acquiror in connection with the Transactions.
Section 5.14 Taxes.
(a) All
income and other material Tax Returns required to be filed by Acquiror have been timely filed (taking into account applicable extensions)
and all such Tax Returns are true, correct and complete in all material respects.
(b) All
income and other material Taxes required to be paid (whether or not shown on any Tax Return) by Acquiror have been duly and timely paid.
(c) No Tax audit, examination or other proceeding with respect to a material amount of Taxes or a material Tax Return of Acquiror is
ongoing, pending or has been threatened in writing.
(d) Acquiror
has withheld (or collected) from amounts owing (or received from) to any employee, creditor or other Person all material amounts of Taxes
(including sales or other similar Taxes) required by Law to be withheld (or collected), and the Acquiror has paid over to the proper
Governmental Authority in a timely manner all such amounts required to have been so paid over, and complied in all material respects
with all applicable Laws relating to the collection and withholding of Taxes.
(e) There
are no written assessments, deficiencies, adjustments or other claims set forth in writing with respect to any material Taxes or any
material Tax Return that have been asserted or assessed against Acquiror that have not been fully paid or otherwise resolved.
(f)
Acquiror (or any predecessor thereof) has not constituted either a “distributing corporation” or a “controlled
corporation” in a distribution of stock qualifying for income tax-free treatment under Section 355 of the Code (or so much
of Section 356 of the Code as relates to Section 355 of the Code) during the two-year period ending on the date of this Agreement.
(g) Acquiror
has not participated in any “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2).
(h) There
are no Liens with respect to Taxes on any of the assets of Acquiror, other than Permitted Liens.
(i)
Acquiror has no material liability for the Taxes of any Person (other than Acquiror) (i) under Treasury Regulation Section 1.1502-6
(or any similar provision of state, local or foreign Law), (ii) as a transferee or successor, (iii) by operation of Law or (iv) by
contract.
(j)
Acquiror (i) is not currently the beneficiary of any extension of time within which to file any material Tax Return (excluding
extensions granted automatically under applicable Law) and (ii) has not granted, requested or received a request to extend or waive the
statute of limitations with respect to the assessment or collection of Taxes that would remain outstanding after the Closing Date.
(k) Acquiror
has not made a written request for an advance tax ruling or similar guidance that is in progress or pending with any Governmental Authority
with respect to any material Taxes.
(l)
Acquiror has not taken any action that could reasonably be expected to prevent the Merger,
together with the Stock Split and the Note Conversion, from qualifying for the Intended Income Tax Treatment, and to the Knowledge
of Acquiror there are not any facts or circumstances that could reasonably be expected to prevent the Merger,
together with the Stock Split and the Note Conversion, from qualifying for the Intended Income Tax Treatment.
(m) Acquiror is not
subject to any Tax sharing, allocation or similar agreement (other than such Agreements that have been disclosed in public filings
with respect to Acquiror or that are customary commercial contracts (or Contracts entered into in the ordinary course of business)
not primarily related to Taxes and entered into with persons who are not Affiliates of, or direct or indirect equity holders in, the
Sponsor).
(n) Acquiror
is not currently the beneficiary of any extension of time within which to file any material Tax Return (excluding extensions granted
automatically under applicable Law).
(o) No written and unresolved claim has been received by Acquiror from a Governmental Authority in respect of Tax of a particular type
in a jurisdiction where Acquiror does not file Tax Returns of such type that Acquiror is or may be subject to taxation of such type by
that jurisdiction.
(p) Acquiror
will not be required to include any material amount in, or exclude any material item of deduction or loss from, taxable income for any
taxable period (or portion thereof) ending after the Closing Date as a result of any (i) adjustment under Section 481 of the
Code (or any similar provision of state, local or foreign Law) for any taxable period (or portion thereof) ending after the Closing Date,
(ii) installment sale, intercompany transaction or open transaction disposition made prior to the Closing outside the ordinary course
of business, (iii) prepaid amount received or deferred revenue realized prior to the Closing outside the ordinary course of business,
(iv) change in (or incorrect) method of accounting for a taxable period ending on or prior to the Closing Date made (or used) prior
to the Closing, or (v) “closing agreements” described
in Section 7121 of the Code (or any similar provision of state, local or foreign Law) or other written agreement with respect to
Tax matters with any Governmental Authority executed prior to the Closing.
(q)
Acquiror has not elected to defer any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES
Act) or any other Tax obligations pursuant to or in connection with the CARES Act, any COVID-19 Measure or any administrative or other
guidance published with respect thereto by any Governmental Authority that has not been fully and timely paid.
(r)
Acquiror (i) has not made an election pursuant to Section 965(h) of the Code or has any liability for Taxes in respect of any amounts
required to be included in income under Section 965 of the Code and (ii) is not subject to income Tax in a jurisdiction outside the country
of its organization.
Section 5.15 Employees; Employee Benefit Plans.
(a) Other
than any officers or as described in the Acquiror SEC Reports, Acquiror has never had any employees. Other than reimbursement of any
out-of-pocket expenses incurred by Acquiror’s officers and directors in connection with activities on Acquiror’s behalf in
an aggregate amount not in excess of the amount of cash held by Acquiror outside of the Trust Account, Acquiror has no unsatisfied material
liability with respect to any employee.
(b) Other
than as contemplated by this Agreement, Acquiror does not currently maintain, sponsor, contribute to or have any direct liability under
any “employee benefit plan” (within the meaning of Section 3(3) of ERISA).
Section 5.16 Contracts.
Schedule 5.16 sets forth a true, correct and complete list of each “material contract” (as such term is defined
in Regulation S-K of the SEC) to which Acquiror is a party, other than any such material contract previously filed with the SEC.
Section 5.17 Capitalization.
(a) The
authorized capital stock of Acquiror consists of 111,000,000 shares of capital stock, including (i) 100,000,000 shares of Acquiror
Class A Common Stock, (ii) 10,000,000 shares of Acquiror Class B Common Stock and (iii) 1,000,000 shares of preferred stock
(“Acquiror Preferred Stock”). Schedule 5.17(a)
sets forth the total number and amount of all of the issued and outstanding Acquiror Equity Securities of Acquiror (including Acquiror
Warrants), and further sets forth the amount and type of Acquiror Equity Securities of Acquiror owned or held by each of Sponsor and
each of Sponsor’s Affiliates. No shares of Acquiror Preferred Stock have been issued or are outstanding. All of the issued and
outstanding shares of Acquiror Equity Securities of the Acquiror (i) have been duly authorized and validly issued and are fully
paid and non-assessable, (ii) were issued in full compliance with applicable Law and (iii) were not issued in breach or violation
of any preemptive rights or Contract.
(b) Except as set forth on Schedule 5.17(a), there are no Equity Securities of Acquiror authorized, reserved, issued or
outstanding. Except as disclosed in the SEC Reports or the Acquiror Organizational Documents, there are no outstanding obligations of
Acquiror to repurchase, redeem or otherwise acquire any Equity Securities of Acquiror. There are no outstanding bonds, debentures, notes
or other Indebtedness of Acquiror having the right to vote (or convertible into, or exchangeable for, securities having the right to vote)
on any matter for which the Acquiror Stockholders may vote. Except as disclosed in the SEC Reports, Acquiror is not a party to any stockholders
agreement, voting agreement or registration rights agreement relating to Acquiror Common Stock or any other Equity Securities of Acquiror.
(c)
Acquiror does not own any Equity Securities in any other Person or have any right, option, warrant, conversion right, stock appreciation
right, redemption right, repurchase right, agreement, arrangement or commitment of any character under which a Person is or may become
obligated to issue or sell, or give any right to subscribe for or acquire, or in any way dispose of, any Equity Securities, or any securities
or obligations exercisable or exchangeable for or convertible into Equity Securities of such Person.
Section 5.18 NASDAQ
Stock Market Listing. As of the date of this Agreement, (i) the issued and outstanding units of Acquiror, each such unit comprised
of one share of Acquiror Class A Common Stock and one-half of one Acquiror Warrant, are registered pursuant to Section 12(b) of
the Exchange Act and are listed for trading on the NASDAQ under the symbol “OCAXU”; (ii) the issued and outstanding shares
of Acquiror Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the
NASDAQ under the symbol “OCAX”; and (iii) the issued and outstanding Acquiror Warrants are registered pursuant to Section 12(b)
of the Exchange Act and are listed for trading on the NASDAQ under the symbol “OCAXW”. There is no Action pending or, to
the Knowledge of Acquiror, threatened against Acquiror by the NASDAQ or the SEC with respect to any intention by such entity to deregister
the Acquiror Class A Common Stock or Acquiror Warrants or terminate the listing of Acquiror Class A Common Stock or Acquiror Warrants
on the NASDAQ. None of Acquiror or its Affiliates has taken any action in an attempt to terminate the registration of the Acquiror Class
A Common Stock or Acquiror Warrants under the Exchange Act except as contemplated by this Agreement. Acquiror has not received any notice
from the NASDAQ or the SEC regarding the revocation of such listing or otherwise regarding the delisting of the Acquiror Class A Common
Stock from the NASDAQ or the SEC.
Section 5.19 Related Party Transactions. Except as expressly set forth in the SEC Reports and the Subscription Agreements, there are
no Contracts, transactions, arrangements or understandings between Acquiror or its Affiliates, on the one hand, and Sponsor, any Affiliate
of Sponsor or any director, officer, employee, stockholder, warrant holder or Affiliate of Acquiror, on the other hand.
Section 5.20 Investment
Company Act; JOBS Act. Acquiror is not an “investment company” or a Person directly or indirectly “controlled”
by or acting on behalf of an “investment company”, in each case, within the meaning of the Investment Company Act of 1940,
as amended. Acquiror constitutes an “emerging growth company” within the meaning of the JOBS Act.
Section 5.21 Absence
of Changes. Since December 31, 2022, (a) there has not been any event or occurrence that has had, individually or in the aggregate,
an Acquiror Material Adverse Effect and (b) Acquiror has, in all material respects, conducted its business and operated its properties
in the ordinary course of business consistent with past practice.
Section 5.22 Restrictions on Business Activities. Except as disclosed in Schedule 5.22, to the Knowledge of the Acquiror,
there is no agreement, commitment, judgment, injunction, order or decree binding upon Acquiror or its assets or to which Acquiror is a
party which has or could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of Acquiror,
any acquisition of property by Acquiror or the conduct of business by Acquiror as currently conducted.
Section 5.23 Certain
Provided Information. The information relating to the Acquiror supplied or to be supplied by the Acquiror or its Affiliates or
Representatives for inclusion in the Proxy Statement will not, as of the date on which the Proxy Statement, or any amendment or
supplement thereto, is first distributed to the holders of Acquiror Common Stock and Acquiror Warrants or at the time of each
Special Meeting, contain any statement which, at the time and in the light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements therein
not false or misleading. Notwithstanding the foregoing, Acquiror makes no representation, warranty or covenant with respect to
statements made or incorporated by reference therein based on information supplied by the Company for inclusion or incorporation by
reference in the Registration Statement and Proxy Statement or any SEC Reports.
Section 5.24 No
Other Representations. Except as provided in this Article V (as modified by the Schedules), neither Acquiror, nor any of its
respective Representatives, nor any other Person has made, or is making, any representation or warranty whatsoever in respect of the
Acquiror.
Article
VI
Covenants of the Company PARTIES
Section 6.01 Conduct
of Business. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance
with its terms (the “Interim Period”), the Company
Parties shall, and Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement, as required by applicable
Law or as consented to in writing by Acquiror (which consent shall not be unreasonably conditioned, withheld or delayed) use reasonable
best efforts to (i) conduct and operate their business in the ordinary course of business consistent with past practices, (ii) preserve
intact the current business organization of the Company and its Subsidiaries (including Merger Sub) and (iii) preserve their relationships
with Governmental Authorities, material suppliers, customers, vendors, lessors and other Persons having material business relationships
with the Company and its Subsidiaries. Without limiting the generality of the foregoing, except as contemplated by this Agreement, as
set forth on Schedule 6.01 or as consented to by Acquiror in writing (such consent not to be unreasonably conditioned, withheld
or delayed), or as required by applicable Law, the Company Parties shall not, and the Company shall cause its Subsidiaries not to, during
the Interim Period:
(a)
change, or amend or otherwise modify any of the Company Organizational Documents;
(b) make, declare, set aside, establish a record date for or pay any dividend, return of capital or other distribution of profits or
assets (whether in cash, stock or property or other combination thereof), other than any dividends, return of capital or other distributions
from any wholly-owned Subsidiary of the Company either to the Company or any other wholly-owned Subsidiaries of the Company;
(c) enter
into a Contract that would be a Specified Contract or Real Property Lease if entered into prior to the date hereof, or modify, amend,
terminate or waive any material right under any Specified Contract or any Real Property Lease, in each case other than in the ordinary
course of business consistent with past practice;
(d) sell,
transfer, convey, lease or license any Owned Real Property;
(e) authorize
for issuance, issue, deliver, sell, transfer, pledge or dispose of or otherwise place or suffer to exist any Lien (other than a Permitted
Lien) on, any Equity Securities of the Company or any of its Subsidiaries;
(f)
sell, assign, transfer, convey,
lease, license, abandon, allow to lapse or expire, subject to, grant or suffer to exist any Lien (other than Permitted Liens) on, or otherwise
dispose of, any material assets, rights or properties (including all Owned Real Property, Leased Real Property, and material Intellectual
Property), other than (i) the sale of goods and services to customers in the ordinary course of business, (ii) the sale
or other disposition of tangible assets (excluding the Owned Real Property and the Leased Real Property) or equipment deemed by the Company
in its reasonable business judgment to be obsolete or otherwise warranted in the ordinary course of business, (iii) grants of non-exclusive
licenses of Intellectual Property to customers in the ordinary course of business, or (iv) transactions among the Company and its
wholly-owned Subsidiaries or among its wholly-owned Subsidiaries (provided that, with respect to Intellectual Property, such transactions
consist of non-exclusive licenses granted in the ordinary course of business);
(g) settle
or compromise any pending or threatened Action, waive any material claims or rights, or enter into any consent decree or settlement agreement
with any Governmental Authority against or affecting any of the Company or its Subsidiaries or any assets of the Company or its Subsidiaries,
other than settlements where the amount paid in settlement or compromise does not exceed $250,000 individually
or $1,000,000 in the aggregate;
(h) except
as otherwise required by the terms of any existing Company Benefit Plans as in effect on the date hereof, (i) increase the compensation
or benefits of any current or former officer, director, employee or other individual service provider of the Company or its Subsidiaries,
other than annual base compensation raises and awards of bonus or other incentive compensation for employees in the ordinary course of
business whose annual compensation after such increase does not exceed $250,000, (ii) pay or promise to pay, fund or promise to
fund any new, enter into or make any grant of any, severance, change in control, transaction bonus, retention or termination bonus to
any current or former employees, officers, directors, consultants or individual service providers of the Company or its Subsidiaries,
(iii) establish any trust or take any action to accelerate any compensation or benefits, or accelerate the vesting, the time of
payment or the funding, or secure the funding of any payments or benefits, payable or to become payable to any current or former employees,
officers, directors, consultants or individual service providers of the Company or its Subsidiaries or (iv) hire, engage, terminate
(without cause), furlough, or temporarily lay off any employee, director, independent contractor or other service provider of the Company
or its subsidiaries with annual compensation in excess of $250,000, or (v) except as otherwise permitted by this paragraph, adopt, enter
into, establish, terminate or amend any Company Benefit Plan or any other plan, program, agreement or arrangement that would constitute
a Company Benefit Plan if in effect on the date hereof;
(i)
negotiate, modify, extend, or enter into any CBA or (ii) recognize or certify any labor union, labor organization, works council,
or group of employees as the bargaining representative for any employees of the Company or its Subsidiaries;
(j)
implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions,
work schedule changes or other such actions that could implicate the WARN Act;
(k) waive
or release any noncompetition, nonsolicitation, nondisclosure, noninterference, nondisparagement, or other restrictive covenant obligation
of any current or former employee or independent contractor;
(l)
make any loans or advance any money or other property to any Person, except (i) prepayments and deposits paid to suppliers
of the Company or any of its Subsidiaries in the ordinary course of business, (ii) trade credit extended to customers of the Company
or any of its Subsidiaries in the ordinary course of business, (iii) advances
or other payments among the Company and its Subsidiaries and (iv) advances in the ordinary course of business of the Company or its
Subsidiaries and consistent with past practice to employees, officers or directors of the Company or any of its Subsidiaries for out-of-pocket
expenses;
(m)
redeem, purchase, repurchase or otherwise acquire, or offer to redeem, purchase, repurchase
or acquire, any Equity Securities of the Company any of its Subsidiaries other than transactions solely between the Company and
its wholly-owned Subsidiaries or solely between wholly-owned Subsidiaries of the Company;
(n) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any Equity Securities
of the Company or any of its Subsidiaries;
(o) make
any change in accounting principles or methods of financial accounting affecting the reported consolidated assets, liabilities or results
of operations of the Company and its Subsidiaries, other than as may be required by GAAP or applicable Law;
(p) (i) acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of
or a controlling equity interest in, any corporation, partnership, association, joint venture or other business organization or division
thereof, (ii) make any acquisition of any assets, business, Equity Securities or other properties in excess of $100,000,000 individually
or $200,000,000 in the aggregate, other than in the ordinary course of business, or (iii) adopt or enter into a plan of complete
or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or
its Subsidiaries;
(q) modify
the terms of the Company’s and its Subsidiaries’ credit facilities in any respect that is material and adverse to the Company
or Merger Sub (it being understood that expanding or increasing such credit facilities in order to (i) accomplish the future acquisitions
set forth on Schedule 6.01(q) or (ii) address operating capital needs consistent in all material respects with the Company’s
annual capital expenditures budget for periods following the date hereof set forth in Schedule 6.01(q) (the “Budget”)
is not considered adverse to the Company or Merger Sub);
(r)
make, change or revoke any material Tax election in a manner inconsistent with past practice, adopt, change or revoke any material
accounting method with respect to Taxes, amend any Tax Return, settle or compromise any Tax claim or Tax liability, enter into any closing
agreement or other written agreement with any Governmental Authority with respect to any Tax, surrender any right to claim a refund of
Taxes, consent to or request any extension or waiver of the limitation period applicable to any Tax or Tax Return;
(s)
take any action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent
the Merger, together with the Stock Split and the Note Conversion, from qualifying for the
Intended Income Tax Treatment;
(t)
other than draws under the Company’s and its Subsidiaries’ credit facilities, and other than in the ordinary course
of business and consistent with past practices, incur, create or assume any material Indebtedness;
(u) other
than in the ordinary course of business consistent with past practice, enter into any agreement that materially restricts the ability
of the Company or its Subsidiaries to engage or compete in any existing line of business, enter into any agreement that materially restricts
the ability of the Company or its Subsidiaries to enter into a new line of business, or enter into any new line of business;
(v) make
any capital expenditures that in the aggregate exceed $1,000,000, other than any capital expenditure (or series of related capital expenditures)
consistent in all material respects with the Budget;
(w) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled
to any brokerage fee, finders’ fee or other commission in connection with the Transactions;
(x) accelerate
any annual or other bonuses or cash incentive payments ahead of the date on which such bonuses or cash incentive payments would have
been paid in the ordinary course of business for fiscal year 2023;
(y)
form any non-wholly-owned Subsidiary;
(z) enter
into any commodities or currency hedging transaction, other than in the ordinary course of business consistent with past practices;
(aa)
waive any amount owed to any of the Company or any of its Subsidiaries by a customer or transfer any material assets to a customer,
in each case, other than in the ordinary course of business;
(bb) enter into any
Contract between or among a Stockholder Related Party and the Company or its Subsidiaries;
(cc)
fail to use reasonable best efforts to maintain the Insurance Policies in accordance with their respective terms (other than to
replace existing policies with substantially comparable policies);
(dd)
modify, amend or otherwise change the terms of any borrowing between a Stockholder Related Party and the Company or its Subsidiaries;
(ee)
fail to maintain any material property or assets of the Company or its Subsidiaries, in substantially the same condition as of
the date of this Agreement, ordinary wear and tear, casualty and condemnation excepted; or
(ff)
authorize, agree or enter into any Contract to do any action prohibited under Section 6.01(a) through (ee).
Notwithstanding
anything to the contrary contained herein (including this Section 6.01), nothing in this Section 6.01 is intended to give
Acquiror or any of its Affiliates, directly or indirectly, the right to control or direct the business or operations of the Company or
its Subsidiaries prior to the Closing, and prior to the Closing, the Company and its Subsidiaries shall exercise, consistent with the
terms and conditions of this Agreement, complete control and supervision over their respective businesses and operations.
Section 6.02 Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished
to the Company or any of its Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession
from time to time, and except for any information which (x) is prohibited from being disclosed by applicable Law or (y) on the
advice of legal counsel of the Company would result in the loss of attorney-client privilege or other privilege from disclosure, the Company
Parties shall, and Company shall cause its Subsidiaries to, afford to Acquiror and its Representatives reasonable access during the Interim
Period, and with reasonable advance notice, in such manner as to not interfere unreasonably with the normal operation of the Company and
its Subsidiaries and so long as reasonably feasible or permissible
under applicable Law, to the properties, facilities, books, Tax Returns, records and appropriate officers and employees of the Company
and its Subsidiaries, and shall use their reasonable best efforts to furnish such Representatives with all financial and operating data
and other information concerning the affairs of the Company and its Subsidiaries that are in the possession of the Company or its Subsidiaries,
in each case, as Acquiror and its Representatives may reasonably request; provided that such access shall not include any invasive or
intrusive investigations or testing, sampling or analysis of any properties, facilities or equipment of the Company or its Subsidiaries,
without the Company’s prior written consent. The Parties shall use reasonable best efforts to make alternative arrangements for
such disclosure where the restrictions in the preceding sentence apply. All information obtained by Acquiror and its Representatives under
this Agreement shall be subject to the Confidentiality Agreement.
Section 6.03 No Claim Against the Trust Account. The Company acknowledges that it has read Acquiror’s final prospectus, dated January
19, 2021, the other SEC Reports and the Acquiror Organizational Documents and understands that Acquiror has established the Trust Account
described therein for the benefit of Acquiror’s public stockholders and that disbursements from the Trust Account are available
only in the limited circumstances of (i) Acquiror Stockholders holding shares of Acquiror Class A Common Stock sold in Acquiror’s
initial public offering who shall have elected to redeem their shares of Acquiror Class A Common Stock pursuant to the Acquiror Organizational
Documents in connection with a Special Meeting or Extension Stockholders’ Meeting; (ii) with respect to deferred underwriting commissions
or franchise and income taxes; or (iii) if Acquiror fails to complete a business combination within the allotted time period in accordance
with the Acquiror Organizational Documents and liquidates the Trust Account, subject to the terms of the Trust Agreement, Acquiror (in
limited amounts to permit Acquiror to pay the expenses of the liquidation, dissolution and winding up of Acquiror) and then the Acquiror
Stockholders. The Company further acknowledges that, if the Transactions, or, in the event of a termination of this Agreement, another
Business Combination, are not consummated by January 20, 2024 or such later date as approved by the Acquiror Stockholders to complete
a Business Combination, Acquiror will be obligated to return to the Acquiror Stockholders the amounts being held in the Trust Account.
Accordingly, the Company (on behalf of itself and its Affiliates and equityholders) hereby waives any past, present or future claims (whether
based on contract, tort, equity or any other theory of legal liability) of any kind in or any right to access any monies in the Trust
Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom to Acquiror Stockholders as a result
of, or arising out of, in connection with or relating in any way to this Agreement or the Transactions with Acquiror; provided that notwithstanding
anything herein or otherwise to the contrary (x) nothing herein shall serve to limit or prohibit the Company’s right to pursue
a claim against Acquiror for legal relief against monies or other assets held outside the Trust Account, for specific performance or other
equitable relief in connection with the consummation of the Transactions (including a claim for Acquiror to specifically perform its obligations
under this Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account (after giving effect to the
Acquiror Stockholder Redemption) to the Company in accordance with the terms of this Agreement and the Trust Agreement), and (y) nothing
herein shall serve to limit or prohibit any claims that the Company may have in the future against Acquiror’s assets or funds that
are not held in the Trust Account (including any funds that have been released from the Trust Account (other than to the Acquiror Stockholders
in connection with redemptions effected prior to a Business Combination) and any assets that have been purchased or acquired by Acquiror
or any successor thereof or any of their respective Affiliates with any such funds or otherwise following a Business Combination). This
Section 6.03 shall survive the termination of this Agreement for any reason. In the event that, following the valid termination
of this Agreement, the Company, its Subsidiaries or any of their controlled Affiliates commences any Legal Proceeding against or involving
the Trust Account, the Acquiror shall be entitled to recover from such Person its reasonable out of pocket legal fees and costs in connection
with any such Legal Proceeding.
Section 6.04 Preparation
and Delivery of Additional Company Financial Statements. The Company Parties will use commercially reasonable efforts to provide
Acquiror with (i) the Company’s consolidated audited financial statements for the fiscal year ending December 31, 2023 by
March 31, 2024 and (ii) the Company’s consolidated interim financial statements for each quarterly period ending on or after
September 30, 2023 (other than a quarterly period ending on the last day of an annual period) by the 60th (sixtieth) calendar
day following the end of each such quarterly period (other than the quarterly period ending September 30, 2023 which shall be delivered
as soon as practicable). All of the financial statements to be delivered pursuant to this Section 6.04 (the “Additional
Financial Statements”) will be prepared under GAAP (except as may be indicated in the notes thereto) in accordance with
requirements of the PCAOB for public companies. The Additional Financial Statements will comply in all material respects with the applicable
accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act for financial statements
required to be included in the Registration Statement and Proxy Statement. The Additional Financial Statements will fairly present in
all material respects the financial position and results of operations of the Company as of the date or for the periods indicated, except
as otherwise indicated in such statements and, in the case of interim financial statements, subject to the absence of footnotes and other
presentation items and for normal or immaterial year-end adjustments. The Company Parties will use commercially reasonable efforts to
promptly provide additional Company financial information (including customary pro forma financial statements) reasonably requested by
Acquiror for inclusion in the Proxy Statement and any other filings, including on Form 8-K, to be made by Acquiror with the SEC.
Section 6.05 FIRPTA.
At the Closing, the Company Parties shall each deliver to Acquiror a duly executed and valid (a) certificate on behalf of such Company
Party, dated as of the Closing Date and prepared in a manner consistent and in accordance with the requirements of Treasury Regulation
Sections 1.897-2(g), (h) and 1.1445-2(c)(3) and reasonably satisfactory to Acquiror, certifying that no interest in either Company
Party is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property
interest” within the meaning of Section 897(c) of the Code, and a duly executed and valid notice to the Internal Revenue Service
prepared in a manner consistent and in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) and reasonably
satisfactory to Acquiror. After the Closing Date, Acquiror shall mail the notice referred to above to the Internal Revenue Service within
the time frame provided in Treasury Regulations Section 1.897-2(h)(2)(v).
Section 6.06 No
Acquiror Stock Transactions. The Company Parties acknowledge and agree that they are aware, and that each Company Party’s Affiliates
are aware (and, to the Knowledge of the Company, each of their respective Representatives is aware or, upon receipt of any material nonpublic
information of Acquiror, will be advised) of the restrictions imposed by U.S. federal securities Laws and the rules and regulations of
the SEC promulgated thereunder or otherwise (the “Federal Securities
Laws”) and other applicable foreign and domestic Laws and NASDAQ on a Person possessing material nonpublic information
about a publicly traded company. The Company Parties hereby agree that, while they are in possession of such material nonpublic information,
they shall not purchase or sell any securities of Acquiror (other than to engage in the Transactions), take any other action with respect
to Acquiror in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
Section 6.07 Repayment
of Employee Loans. The Company Parties shall cause each loan identified on Schedule 6.07 made by the Company to its executive
officers and directors in the amounts set forth next to each such borrower’s name on Schedule 6.07, together with all accrued
but unpaid interest thereon (collectively, the “Employee Loans”),
to be repaid in full and terminated without any further force and effect and without any further liability or other obligation to the
Company and its Subsidiaries, no later than one (1) Business Day prior to the Closing Date.
Section 6.08
Notification. During the Interim Period,
the Company Parties shall use reasonable best efforts to notify Acquiror, promptly upon gaining Knowledge thereof, in writing if there
has occurred any event or occurrence that (i) causes any covenant or agreement of any Company Party contained in this Agreement to
be breached, (ii) that renders inaccurate any representation or warranty of any Company Party contained in this Agreement or (iii) that
would reasonably be expected to result in a Company Material Adverse Effect, in each case of clauses (i) - (iii), such that
it would result in the failure of any of the conditions set forth in Section 9.02 to be satisfied on or before the Termination
Date. The delivery of any such notice pursuant to this Section 6.08 shall not cure any breach of any representation, warranty,
covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder. Notwithstanding anything
to the contrary, the Company Parties shall not be in breach of this Section 6.08 (including for purposes of the conditions set
forth in Section 9.02) unless and to the extent that it has committed a Willful Breach of this Section 6.08.
Section 6.09 Company
Stockholder Approval. The Company shall, as promptly as practicable after the Registration Statement Effectiveness Date, give notice
in accordance with the DGCL and the certificate of incorporation and bylaws of the Company to all the Company Stockholders calling for
a special meeting of such stockholders to consider and vote upon the adoption of this Agreement and the approval of the Merger and the
other Transactions contemplated hereby (including the adoption and approval of the Incentive Equity
Plan), and shall hold such meeting as promptly as practicable after such notice is given (“Company
Stockholder Meeting”). The Company and its board of directors shall cause the Company Stockholder Meeting to take place
in accordance with the foregoing and in compliance with the Securities Act, the DGCL and the certificate of incorporation and bylaws
of the Company and use commercially reasonable best efforts to secure the Company Stockholder Approval at the Company Stockholder Meeting.
Notwithstanding the foregoing, at the election and option of the Company, the Company shall be permitted to obtain the Company Stockholder
Approval, without a need for calling a Company Stockholder Meeting, by obtaining the written consent of holders of shares of voting capital
stock of the Company representing the Company Stockholder Approval that is executed and delivered by such holders after the Registration
Statement Effectiveness Date; provided, that, in the event that the Company elects to obtain the Company Stockholder Approval pursuant
to such written consent, consents with respect to this Agreement, the Merger and the other Transactions contemplated hereby will be solicited
from all holders of shares of capital stock of the Company entitled to vote with respect to such matters. The Company shall use its commercially
reasonable best efforts to cause the Company Stockholders to (i) to vote (in person, by proxy or by action by written consent, as
applicable) all of their shares of capital stock of the Company entitled to vote with respect to such matters in favor of, and adopt,
the Merger and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability
of the Company to consummate the Merger and (ii) to execute and deliver all related documentation and take such other action in
support of the Merger as shall reasonably be requested by the Company in connection with the Merger.
Section 6.10 Performance
of Material Contracts of PRC Subsidiaries. During the Interim Period, the Company Parties shall, and shall cause the Company’s
Subsidiaries to, use reasonable best efforts to perform and cause the other parties to perform, in a timely manner and in all material
respects, the Contracts to which the Company or any of its Subsidiaries is a party, including the Contracts as set forth on Schedule
4.13(a) and Schedule 4.18(a), in accordance with the terms and conditions thereof. The Company Parties shall notify Acquiror,
promptly upon gaining Knowledge thereof, in writing if there has occurred any event or occurrence that causes or would reasonably be
expected to cause any of the Contracts to be breached or otherwise impossible to perform, unless such event or occurrence would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 6.11 Transfer
of Intellectual Property to PRC Subsidiaries. The Company shall, and shall cause its Subsidiaries and the Divested PRC Entities (as
applicable) to, as promptly as practicable after the execution of the transfer agreements
and documentation contemplated under Section 9.02(g), effect and complete the registrations of the assignment and transfer of the
Intellectual Property, including the Intellectual Property as set forth on Schedule 4.19(a), to the Company and/or its Subsidiaries
with the relevant Governmental Authorities, and shall cooperate in all material respects to effect and complete such registrations.
Section 6.12 Indemnification and Directors’ and Officers’ Insurance.
(a) From and after the Effective Time, the Company shall and shall cause the Surviving Acquisition
Entity to indemnify and hold harmless each present and former director, officer and employee of the Company Parties and Acquiror and each
of Company’s respective Subsidiaries (the “D&O Indemnitees”) against
any costs or expenses (including reasonable attorneys’ fees), judgments, fines, claims, damages or losses incurred in connection
with any claim, Action or threatened Action, whether civil, criminal, administrative, investigative or otherwise, arising out of or pertaining
to matters existing or occurring at or prior to the Effective Time, as applicable, whether asserted or claimed prior to, at or after the
Effective Time, as applicable, to the fullest extent permitted under applicable Law (including the advancing of expenses as incurred to
the fullest extent permitted under applicable Law). Without limiting the foregoing, the Company shall and shall cause the Surviving Acquisition
Entity and each of its Subsidiaries to, (i) maintain for a period of not less than six
years from the Effective Time, as applicable, (x) provisions in the Company Organizational Documents concerning the indemnification
and exoneration (including provisions relating to expense advancement) of D&O Indemnitees that are no less favorable to those Persons
than the provisions of the Acquiror Organizational Documents and the Company Organizational Documents as of the date of this Agreement,
and (y) all rights to indemnification now existing in favor of the D&O Indemnitees in any indemnification agreements with the
Acquiror or the Company, as applicable, and (ii) not amend, repeal or otherwise modify
such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by
Law.
(b) At
or prior to the Effective Time, as applicable, the Company shall obtain and fully pay the premium for a six-year director’s and
officers’ liability insurance “tail” policy, covering those Persons who are covered by the Company’s and Acquiror’s
current directors’ and officers’ liability insurance policies with respect to claims that are based upon or arising out of
any actual or alleged act, error or omission committed, or allegedly committed, prior to the Effective Time, as applicable, with terms,
conditions, retentions and limits of liability that are no less favorable in the aggregate than the coverage provided under Acquiror’s
existing policies. Provided, however, that in no event shall the Company be required to pay more than 300% of the amount paid for such
insurance in the last 12-month period prior to the date of this Agreement. In the event the aggregate premiums of such insurance coverage
exceed such amount, the Company shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding such
amount.
(c) For a period of six years from the Effective Time, as applicable, the Company shall or shall cause the Surviving
Acquisition Entity to maintain in effect directors’ and officers’ liability insurance covering those Persons who are
currently covered by Acquiror’s or the Company’s or any of its Subsidiaries’ directors’ and officers’ liability
insurance policies on terms not less favorable than the terms of such current insurance coverage; provided that if any claim is
asserted or made within such six-year period, any insurance required to be maintained under this Section 6.12 shall be continued
in respect of such claim until the final disposition thereof.
(d) Notwithstanding
anything contained in this Agreement to the contrary, this Section 6.12 shall survive the consummation of the Merger
indefinitely and shall be binding, jointly and severally, on the Company, the Surviving Acquisition Entity and all successors and
assigns of the Company and the Surviving Acquisition Entity. In the event that the Company or the Surviving Acquisition Entity or
any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or
surviving corporation or entity of such consolidation or merger 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 the
Company or the Surviving Acquisition Entity, as the case may be, shall succeed to the obligations set forth in this Section
6.12.
(e)
The D&O Indemnitees are express third-party beneficiaries of this Section 6.12.
Section 6.13
Section 16 Matters. Prior to the Effective Time, the Company’s board of directors or an appropriate committee
thereof shall take all such steps as may be required to adopt a resolution consistent with the interpretive guidance of the SEC so that
the acquisition of Company Common Stock pursuant to this Agreement by any officer or director of Acquiror or the Company who is expected
to become a director or officer (as defined under Rule 16a-1(f) of the Exchange Act) of Company for purposes of Section 16 of the
Exchange Act and the rules and regulations thereunder will be an exempt transaction under such rules and regulations.
Section 6.14
Incentive Equity Plan. Prior to the Closing Date, the Company shall adopt, subject to approval of the Company Stockholders,
an incentive equity plan, in a form to be mutually agreed upon between the Acquiror and the Company, that provides for grants of awards
to eligible service providers (the “Incentive Equity Plan”).
The Incentive Equity Plan shall have (a) an initial share reserve equal to 10% of the aggregate number of shares of Company Common Stock
outstanding immediately following the Closing, on a fully diluted (calculated after giving effect to the Transactions), and (ii) an annual
“evergreen” increase feature as mutually agreed upon between the Acquiror and the Company.
Section 6.15
Company Preferred Equity Financing. The Company shall not issue any shares of preferred stock of the Company at any time
during the ninety (90) days immediately prior to the Effective Time.
Article
VII
Covenants Of Acquiror
Section 7.01
Conduct of Acquiror During the Interim Period.
(a)
During the Interim Period, except as set forth on Schedule 7.01, as required by this Agreement, as consented to by
the Company in writing (which consent shall not be unreasonably conditioned, withheld or delayed, except in the case of clause (ix)
below which consent will be granted or withheld in the Company’s sole discretion), or as required by applicable Law (including Laws
that are COVID-19 Measures), Acquiror shall not:
(i) change,
amend, restate, supplement or otherwise modify any of the Trust Agreement or the Acquiror Organizational Documents, other than in
connection with an Extension Stockholders’ Meeting;
(ii)
(A) declare, set aside or pay any dividends on, or make any other distribution in respect of any outstanding Equity Securities
of Acquiror; (B) split, combine or reclassify any Equity Securities of Acquiror; or (C) other than in connection with the Acquiror
Stockholder Redemption, repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any Equity Securities
of Acquiror;
(iii) make,
change or revoke any material Tax election in a manner inconsistent with pact practices, adopt, change or revoke any material
accounting method with respect to Taxes, settle or compromise any Tax claim or Tax liability, enter into any closing agreement or
other written agreement with any Governmental Authority with respect to any Tax, amend any Tax Return, surrender any right to claim
a refund of Taxes, or consent to or request any extension or waiver of the limitation period applicable to any Tax or Tax
Return;
(iv) take any
action, or knowingly fail to take any action, where such action or failure to act could reasonably be expected to prevent the
Merger, together with the Stock Split and the Note Conversion, from qualifying for the
Intended Income Tax Treatment;
(v)
enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of Acquiror (including, for the
avoidance of doubt, (x) the Sponsor and (y) any Person in which any Sponsor has a direct or indirect legal, contractual or beneficial
ownership interest of 5% or greater);
(vi) waive,
release, compromise, settle or satisfy any pending or threatened material claim or Action or compromise or settle any liability that
would require any payment from the Trust Account or that would impose non-monetary obligations on Acquiror or any of its Affiliates
(or the Company or any of its Subsidiaries after the Closing);
(vii)
incur, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness; provided, that
Acquiror shall be permitted to incur such Indebtedness from its Affiliates and the Acquiror Stockholders in order to meet its reasonable
capital requirements, with any such loans to be made only as reasonably required by the operation of Acquiror in due course on a non-interest
basis and otherwise on commercially reasonable terms and conditions and repayable in cash at Closing;
(viii) (A) offer,
issue, deliver, grant or sell, or authorize or propose to offer, issue, deliver, grant or sell, any Equity Securities other than
issuance of Acquiror Common Stock pursuant the Subscription Agreements or (B) amend, modify or waive any of the terms or rights
set forth in, any Acquiror Warrant or the applicable warrant agreement, including any amendment, modification or reduction of the
warrant price set forth therein; or
(ix) enter into any
Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee,
finders’ fee or other commission that is payable by the Company or any of its Affiliates, or by Acquiror in connection with the
Transactions; or (xi) enter into any agreement, or otherwise become obligated, to do any action prohibited under this Section 7.01(a).
(b)
During the Interim Period, Acquiror shall comply with, and continue performing under, as applicable, the Acquiror Organizational
Documents, the Trust Agreement, the Transaction Agreements and all other agreements or Contracts to which Acquiror is a party.
Section 7.02 Trust
Account Proceeds. Upon satisfaction or waiver of the conditions set forth in Article IX and provision of notice thereof
to the Trustee (which notice Acquiror shall provide to the Trustee in accordance with the terms of the Trust Agreement), in
accordance with and pursuant to the Trust Agreement, (a) at the Closing, Acquiror (i) shall cause any documents, opinions
and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (ii) shall use its
reasonable best efforts to cause the Trustee to (w) pay (or distribute to the Company for payment) as and when due any income and
other Tax obligations from any income earned in the Trust Account, (x) pay as and when due all amounts payable to the Acquiror
Stockholders pursuant to the Acquiror Stockholder Redemption, (y) pay the amounts due to the underwriters of Acquiror’s
initial public offering for their deferred underwriting commissions as, in the amount, and subject to the terms set forth in Section
7.06 and in the Trust Agreement and (z) pay all remaining amounts then available in the Trust Account to Acquiror for
immediate use, or as otherwise directed by the Acquiror and agreed to by the Company, subject to this Agreement and the Trust
Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided in the Trust Agreement.
Section 7.03
Inspection. Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished
to Acquiror by third parties that may be in Acquiror’s possession from time to time, and except for any information which (x) is
prohibited from being disclosed by applicable Law or (y) on the advice of legal counsel of Acquiror would result in the loss of attorney-client
privilege or other privilege from disclosure, Acquiror shall afford to the Company Parties, their Affiliates and respective Representatives
reasonable access during the Interim Period, and with reasonable advance notice, so long as reasonably feasible or permissible under applicable
Law, to the books, Tax Returns, records and appropriate officers and employees of Acquiror, and shall use its reasonable best efforts
to furnish such Representatives with all financial and operating data and other information concerning the affairs of Acquiror, in each
case as the Company Parties and their Representatives may reasonably request for purposes of the Transactions. The Parties shall use reasonable
best efforts to make alternative arrangements for such disclosure where the restrictions in the preceding sentence apply. All information
obtained by the Company Parties and their Representatives under this Agreement shall be subject to the Confidentiality Agreement.
Section 7.04
Acquiror Public Filings. From the date hereof through the Closing, Acquiror will keep current and timely file all reports
required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable
Securities Laws.
Section 7.05
Acquiror Board Recommendation. The board of directors of Acquiror shall not (and no committee or subgroup thereof shall)
change, withdraw, withhold, amend, qualify or modify, or (privately or publicly) propose to change, withdraw, withhold, amend, qualify
or modify, the Acquiror Board Recommendation for any reason, other than to the extent that the board of directors of Acquiror determines
in good faith, after consultation with, and upon receipt of written advice from, its outside counsel, that maintaining the Acquiror Board
Recommendation would result in a breach of fiduciary duty by the board of directors of Acquiror. The board of directors of Acquiror shall
publicly reaffirm the Acquiror Board Recommendation within five (5) Business Days of receipt of a written request therefor from the Company;
provided that Acquiror shall be obligated to make only two (2) such public reaffirmations. If Acquiror shall determine that a change in
the Acquiror Board Recommendation is required to satisfy the board’s fiduciary duties as described in the first sentence of this
section, Acquiror shall notify the Company promptly (but in no event later than 24 hours) after it makes such determination. In such notice,
Acquiror shall specify the reason for making the change in Acquiror Board Recommendation in material detail and provide a copy of the
written advice provided by Acquiror’s outside counsel. Acquiror shall provide the Company with at least 48 hours prior notice of
any meeting of the Acquiror board of directors (or such lesser notice as is provided to the members of the board) at which the Acquiror
board is reasonably expected to consider the need for a change in the Acquiror Board Recommendation.
Section 7.06
Underwriting Commission Reduction. Acquiror shall use best efforts to obtain the agreement from the underwriters of its
initial public offering waiving their rights to all deferred underwriting commissions from the initial public offering in excess of $1,000,000.
Section 7.07
Extension of Time to Consummate a Business Combination.
(a) Acquiror
shall cooperate and provide the Company (and its counsel) with a reasonable opportunity to review and comment on and approve in
writing (which approval shall not be unreasonably withheld, conditioned or delayed, provided that the Acquiror shall have considered
the comments of the Company in good faith) any amendments or supplements to the proxy statement (such proxy statements, together
with any amendments or supplements thereto, the “Extension Proxy
Statement”) to amend the Acquiror Organizational Documents, on terms and conditions agreed by the Parties, to
extend the period of time Acquiror is afforded under the Acquiror Organizational Documents to consummate a business combination
until February 20, 2024 (or up to January 20, 2025 if eleven (11) additional monthly extensions are approved thereafter by the board
of directors of Acquiror) (such date the “Extension
Date” and such amendment, the “Extension
Proposal”). Acquiror will advise the Company promptly after: (A) the filing of any supplement or amendment to the
Extension Proxy Statement; (B) any request by the SEC for amendment of the Extension Proxy Statement; (C) any comments from the SEC
relating to the Extension Proxy Statement and responses thereto (and shall provide the Company with a copy or, in the case of oral
communications, summary of such comments); (D) requests by the SEC for additional information (and shall provide the Company with a
copy or, in the case of oral communications, summary of such request); and (E) any other communication, whether written or oral,
from the SEC (and shall provide the Company with a copy or, in the case of oral communications, summary of such communication).
(b)
Each Party shall promptly correct any information provided by it for use in the Extension Proxy Statement if and to the extent
that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable
Laws.
(c)
Acquiror (x) shall solicit proxies from the Acquiror Stockholders to vote in favor of the Extension Proposal, and shall duly
convene and hold the Extension Stockholders’ Meeting, (y) shall use its commercially reasonable efforts to obtain, from the
holders of Acquiror Common Stock the approval of the Extension Proposal, and (z) shall provide the Acquiror Stockholders with the
opportunity to elect to convert their Acquiror Class A Common Stock into a pro rata portion of the Trust Account in connection with the
extension as provided for in the Acquiror Organizational Documents. Acquiror may only adjourn the Extension Stockholders’ Meeting,
by not more than ten (10) Business Days for any such adjournment, (i) to solicit additional proxies for the purpose of obtaining
approval of the Extension Proposal or to or to allow reasonable time for the board of directors of Acquiror to accept reversals of elections
from the holders that elect to convert their Acquiror Class A Common Stock into a pro rata portion of the Trust Account, (ii) if
a quorum is not present (either in person or by proxy) at the Extension Stockholders’ Meeting, for the purpose of obtaining such
a quorum, (iii) to amend the Extension Proposal, (iv) to allow reasonable time for the board of directors of Acquiror to accept reversals
of elections to redeem shares of Acquiror Class A Common Stock or (v) to allow reasonable additional time for the filing or mailing
of any supplemental or amended disclosure that Acquiror has determined in good faith after consultation with outside legal counsel and
with the Company is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by Acquiror
Stockholders prior to the Extension Stockholders’ Meeting; provided that the Extension Stockholders’ Meeting is reconvened
as promptly as practical thereafter. Acquiror agrees that if the approval of the Extension Proposal shall not have been obtained at any
such Extension Stockholders’ Meeting, then Acquiror shall continue to use commercially reasonable efforts to hold additional Extension
Stockholders’ Meetings in order to obtain the approval of the Extension Proposal until the termination of this Agreement in accordance
with its terms. Notwithstanding anything to the contrary herein, if the Closing occurs prior to January 20, 2024, Acquiror shall cancel
the Extension Stockholders’ Meeting.
(d) Acquiror shall comply
with all applicable provisions of and rules under the Exchange Act and all applicable provisions of the DGCL in the preparation,
filing and distribution of the Extension Proxy Statement, the solicitation of proxies thereunder, and the calling and holding of the
Extension Stockholders’ Meeting. Without limiting the foregoing, Acquiror and the Company shall each ensure that the Extension
Proxy Statement does not, as of the date on which it is first distributed to the Acquiror Stockholders, and as of the date of the
Extension Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements made in light of the circumstances under which they were made, not misleading (provided that no Party
shall be responsible for the accuracy or completeness of any information relating to another Party or any other information
furnished by another Party for inclusion in the Extension Proxy Statement).
(e)
Acquiror, acting through its board of directors, shall otherwise use commercially reasonable efforts to obtain approval of the
Extension Proposal. Neither Acquiror’s board of directors nor any committee or agent or Representative thereof shall withdraw (or
modify in a manner adverse to the Company) or propose to withdraw (or modify in a manner adverse to the Company) Acquiror’s board
of director’s recommendation that the Acquiror Stockholders vote in favor of the adoption of the Extension Proposal.
(f) All filing fees, legal
fees and disbursements, accountings fees, and other costs, and expenses for and in relation to any extension of the period of time
Acquiror is afforded under the Acquiror Organizational Documents to consummate a business combination, including the Extension Proxy
Statement and Extension Stockholders’ Meeting, shall be borne solely by Acquiror. Acquiror shall not issue any of its Equity
Securities, or rights to acquire Equity Securities, or enter into any Contracts or commitments to do the foregoing, in connection
with the Extension Proposal or the solicitation of stockholder approval of favor of the Extension Proposal without the prior written
consent of the Company.
Article
VIII
Joint Covenants
Section 8.01
Efforts to Consummate.
(a) Subject to the terms
and conditions herein, each of the Parties shall use its respective reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as
reasonably practicable the Transactions contemplated by this Agreement (including (i) preparation and agreement upon the form
of each of (A) the matters to be considered for the Company Stockholder Approval (including the Incentive Equity Plan),
(B) the Lockup Agreement, (C) the Registration Rights Agreement and (D) the Certificate of Merger ,
(ii) the satisfaction of the closing conditions set forth in Article IX and (iii) consummating the PIPE Investment in
accordance with Section 8.07). Without limiting the generality of the foregoing, each of the Parties shall use reasonable
best efforts to: (A) obtain any Consents from, or file any notices to, any Governmental Authorities or other Persons necessary
to change the name of the authorized permittee of any Permits held by the Company to the name of the Surviving Acquisition Entity,
as necessary for the continued lawful conduct of the business of the Company after Closing, and (B) obtain, file with or
deliver to, as applicable, any Consents of, or notices to, any Governmental Authorities (including any applicable Competition
Authorities) or other Persons necessary to consummate the Transactions and the transactions contemplated by the Transaction
Agreements. Each Party shall (I) make any appropriate filings pursuant to the HSR Act with respect to the Transactions promptly
(and in any event within ten (10) Business Days) following the date of this Agreement, (II) submit notifications (including
draft notifications, as applicable), filings, notices and other required submissions pursuant to the Competition Laws or Investment
Screening Laws of the other jurisdictions set forth on Schedule 8.01(a) with respect to the transactions contemplated by
this Agreement as promptly as practicable following the date of this Agreement (and any filing fees associated with any such filings
shall be paid by Acquiror) and (III) respond as promptly as reasonably practicable to any requests by any Governmental
Authority (including any Competition Authorities) for additional information and documentary material that may be requested pursuant
to any Competition Laws (including the HSR Act) or Investment Screening Laws. Acquiror shall promptly inform the Company of any
communication between Acquiror, on the one hand, and any Governmental Authority (including any Competition Authorities), on the
other hand, and the Company shall promptly inform Acquiror of any communication between the Company Parties, on the one hand, and
any Governmental Authority, on the other hand, in either case, regarding any of the Transactions or any Transaction Agreement.
Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or
comparable period under the HSR Act or any other Competition Laws or Investment Screening Laws or enter into any agreement with any
Governmental Authority not to consummate the Transactions or by the other Transaction Agreements, except with the prior written
consent of Acquiror and the Company.
(b)
During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand,
shall give counsel for the Company (in the case of Acquiror) or Acquiror (in the case of the Company), a reasonable opportunity to review
in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental
Authority (including any Competition Authorities) relating to the Transactions or the Transaction Agreements. Each of the Parties agrees
not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Authority in connection
with the Transactions unless it consults with, in the case of Acquiror, the Company, or, in the case of the Company, Acquiror in advance
and, to the extent not prohibited by such Competition Authority, gives, in the case of Acquiror, the Company, or, in the case of the Company,
Acquiror, the opportunity to attend and participate in such meeting or discussion.
(c)
Notwithstanding anything to the contrary in the Agreement, (i) in the event that this
Section 8.01 conflicts with any other covenant or agreement in this Agreement that is intended to specifically address any subject
matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict and (ii) other than
for de minimis costs and expenses, in no event shall Acquiror, Merger Sub, the Company or the Company’s Subsidiaries be obligated
to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant
to the terms of any Contract to which the Company or its Subsidiaries is a party or otherwise in connection with the consummation of the
Transactions; provided that any fees relating to any filings under Competition Laws (including HSR) or Investment Screening Laws
shall be borne by Acquiror.
(d)
During the Interim Period, Acquiror, on the one hand, and the Company, on the other hand,
shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder proceedings (including
derivative claims) relating to this Agreement, any other Transaction Agreements or any matters relating thereto (collectively, the “Transaction
Litigation”) commenced against, in the case of Acquiror, Acquiror or any of its respective Representatives (in their
capacity as a representative of Acquiror) or, in the case of the Company, any Subsidiary of the Company or any of their respective Representatives
(in their capacity as a representative of the Company or its Subsidiaries). Acquiror and the Company shall each (i) keep the other
reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate
in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with
the defense, settlement and compromise of any such Transaction Litigation, (iii) consider
in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other.
Notwithstanding the foregoing, in no event shall either of the Company or the Acquiror (or any of their respective Representatives) settle
or compromise any Transaction Litigation without the prior written consent of the other Party (not to be unreasonably withheld, conditioned
or delayed).
Section 8.02
Registration Statement; Proxy Statement; Special Meeting.
(a) Registration
Statement and Proxy Statement. As promptly as reasonably practicable after the execution of this Agreement, Acquiror and the
Company shall jointly prepare and the Company shall file with the SEC a registration statement on Form S-4 (together with all
amendments thereto, the “Registration
Statement”) registering the securities to be issued in the Merger and the shares of Company Common Stock to be
issued to the Acquiror Stockholders as Closing Share Consideration for offer and sale under the Securities Act. The Registration
Statement shall include a proxy statement/prospectus in connection with the Transactions (as amended or supplemented, the
“Proxy Statement”) to be filed by the Acquiror
on Schedule 14A and used for soliciting proxies from holders of Acquiror Class A Common Stock to vote at a Special Meeting, as
adjourned or postponed, in favor of the Acquiror Stockholder Matters. Acquiror will provide the Company, as promptly as reasonably
practicable, with such information concerning Acquiror as may be necessary for the information concerning the Company in the
Registration Statement, Proxy Statement (including delivering customary Tax representation letters to counsel to enable counsel to
deliver any Tax opinions requested or required by the SEC or to be submitted in connection therewith) and Other Filings (as defined
below) to comply with all applicable provisions of and rules under the Securities Act, the Exchange Act and the DGCL in connection
with the preparation, filing and distribution of the Registration Statement and Proxy Statement and the solicitation of proxies
thereunder, the calling and holding of each Special Meeting and the preparation and filing of the Other Filings. The information
relating to Acquiror furnished by or on behalf of Acquiror in writing expressly for inclusion in such filings will not, (i) in
the case of the Registration Statement and the Proxy Statement, as of (A) the Registration Statement Effectiveness Date,
(B) the date of mailing of the Proxy Statement to the holders of Acquiror Common Stock, (C) the date and time of each
Special Meeting or (D) the Effective Time, or (ii) in the case of any Other Filing, on the date of its filing, contain any
statement which, at such time and in light of the circumstances under which it is made, is false or misleading with respect to any
material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, at such time and in light of the circumstances under which they were made, not false or misleading. Without limiting the
foregoing, the Company will use its best efforts to ensure that (1) the Registration Statement and Proxy Statement do not, as
of (I) the Registration Statement Effectiveness Date, (II) the date of mailing of the Proxy Statement to the holders of
Acquiror Common Stock, (III) the date and time of each Special Meeting, or (IV) the Effective Time, and (2) any Other
Filing does not, as of the date of its filing, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading
(provided that Acquiror will not be responsible for the accuracy or completeness of any information relating to the Company or any
other information furnished in writing by the expressly for inclusion in Registration Statement and Proxy Statement). Whenever any
information is discovered or event occurs which would reasonably be expected to result in the Registration Statement or Proxy
Statement containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not misleading, Acquiror or the Company, as the case may
be, will promptly inform the other Party of such occurrence and cooperate in Acquiror filing with the SEC or its staff or any other
Governmental Authority, and/or mailing to stockholders of Acquiror, an amendment or supplement to the Registration Statement or
Proxy Statement, as applicable. Each of the Parties shall use its commercially reasonable efforts to (1) cause the Registration
Statement and Proxy Statement and Other Filings to, when filed with the SEC, comply in all material respects with all legal
requirements applicable thereto, (2) respond as promptly as reasonably practicable to and resolve all comments received from
the SEC concerning the Registration Statement and Proxy Statement, (3) cause all comments from the SEC on the Registration
Statement and Proxy Statement to be cleared as promptly as practicable and (4) keep the Registration Statement effective as
long as is necessary to consummate the Transactions. The Company shall not file the Registration Statement, Proxy Statement, Other
Filing or any amendment or supplement thereto or any other document proposed to be filed in connection therewith with the SEC
without the prior written consent of Acquiror, such consent not to be unreasonably withheld, conditioned or delayed. Any fees
relating to the filing of the Registration Statement or the Proxy Statement shall be borne by Acquiror.
(b) Comment
Period. The Company will notify Acquiror promptly upon the receipt of any comments from the SEC or its staff or any request by the SEC,
its staff or any other Governmental Authority for amendments or supplements to the Registration Statement, Proxy Statement or
any Other Filing (as defined below) or for additional information, and will provide a copy of all written correspondence (or, to the
extent such correspondence is oral, a complete summary thereof) from the SEC, its staff or any other Governmental Authority.
Acquiror and the Company shall jointly prepare and the Company shall file with the SEC any response letters to any comments from the
SEC. The Company shall not file any such response letter without the prior written consent of the Company, such consent not to be
unreasonably withheld, conditioned or delayed. Prior to the Registration Statement Effectiveness Date (as defined below), Acquiror
will take all action necessary under applicable Law to, in consultation with the Company, establish a record date for each Special
Meeting (as defined below).
(c)
Effectiveness; Mailing; Proxy Solicitation. Acquiror shall cause the Proxy Statement
to be mailed to the Acquiror Stockholders as soon as practicable after the date on which all SEC comments to the Registration Statement
and Proxy Statement have been cleared and the Registration Statement becomes effective (the “Registration
Statement Effectiveness Date”) (but in any event, no later than fifteen (15) calendar days following such date, or such
later time as may be agreed by Acquiror and the Company) for the purpose of soliciting the proxies described in Section 8.02(a).
Acquiror shall include the Acquiror Board Recommendation in the Proxy Statement, shall not withdraw or modify the Acquiror Board Recommendation
(except in accordance with Section 7.05) and shall otherwise take all lawful action to solicit and obtain the Required Acquiror
Stockholder Approval. Acquiror will keep the Company reasonably informed regarding all matters relating to the proxy solicitation process,
including by promptly furnishing any voting or proxy solicitation reports received by Acquiror and similar updates regarding any requests
for redemptions of Acquiror Class A Common Stock. With respect to any such stockholder outreach by, the Company shall use commercially
reasonable efforts to provide to Acquiror, and will use its commercially reasonable efforts to cause its Affiliates and Representatives,
including legal and accounting representatives, to provide to Acquiror, all cooperation reasonably requested by Acquiror that is customary
and reasonable in connection with such outreach including, among other things, (i) furnishing Acquiror reasonably promptly following
Acquiror’s request, with information reasonably available to it regarding the Company (including information to be used in the preparation
of one or more information packages regarding the business, operations, financial projections and prospects of the Company) customary
for such outreach activities, (ii) causing each of its Representatives with appropriate seniority and expertise to participate in
a reasonable number of meetings, presentations, due diligence sessions and drafting sessions in connection with such outreach activities,
(iii) assisting with the preparation of marketing materials and similar documents required in connection with such outreach activities,
(iv) providing reasonable assistance to Acquiror in connection with the preparation of pro forma financial information to
be included in any marketing materials to be used in any outreach activities, and (v) cooperating with requests for due diligence
to the extent customary and reasonable.
(d) Special
Meeting. Acquiror will use its reasonable best efforts to take, in accordance with applicable Law, NASDAQ rules and the Acquiror
Organizational Documents, all action necessary to duly call, give notice of, convene and hold a meeting of the Acquiror Stockholders
(each such meeting, a “Special Meeting”) as promptly as reasonably
practicable after the Registration Statement Effectiveness Date (but in no event later than 30 Business Days after the Registration
Statement Effectiveness Date), to (i) consider and vote upon the approval of the Acquiror Stockholder Matters and to cause such
vote to be taken and (ii) provide the stockholders of Acquiror with the opportunity to elect to effect a redemption of Acquiror
Class A Common Stock in exchange for a pro rata portion of the proceeds of the Trust Account. Acquiror may only elect (in
consultation with the Company) to postpone or adjourn such meeting (i) to solicit additional proxies for the purpose of obtaining
approval of the Acquiror Stockholder Matters or to allow reasonable time for the board of directors of Acquiror to accept reversals
of elections from the holders that elect to convert their Acquiror Class A Common Stock into a pro rata portion of the Trust
Account, (ii) if a quorum is not present (either in person or by proxy) at a Special Meeting, for the purpose of obtaining such a
quorum, (iii) to amend the Acquiror Stockholder Matters, (iv) to provide reasonable additional time to consummate the
Transactions or (v) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that
Acquiror has determined in good faith after consultation with outside legal counsel and with the Company is required under
applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by stockholders of Acquiror prior to
a respective Special Meeting; provided that such meeting (I) may not be adjourned to a date that is more than ten (10)
business days after the date for which a Special Meeting was originally scheduled (except to the extent required by applicable Law)
and (II) shall not be held later than three (3) Business Days prior to the Termination Date without the prior written consent
of the Company. Acquiror shall, following the Registration Statement Effectiveness Date, use its reasonable best efforts to take all
actions necessary (in its discretion or at the request of the Company) to obtain the approval of the Acquiror Stockholder Matters at
each Special Meeting, including as such Special Meeting may be adjourned or postponed in accordance with this Agreement, including
by soliciting from its stockholders proxies in favor of the Acquiror Stockholder Matters and including in the Proxy Statement the
Acquiror Board Recommendation. Each party shall keep the other party reasonably informed regarding all matters relating to the
Acquiror Stockholder Matters and each Special Meeting, including by promptly furnishing any voting or proxy solicitation reports
received by such party in respect of such matters and similar updates regarding any Acquiror Stockholder Redemptions.
(e)
Other Filings. As promptly as reasonably practicable after the execution of this Agreement
(or as promptly as reasonably practical after the occurrence of any event or circumstance requiring the filing, issuance or other submission
or public disclosure of any such filing, notice, statement, report or other document), Acquiror and the Company will, in consultation
with each other, prepare and file, issue or submit or publicly disclose any other filings, notices, statements, reports or other documents
required under, and in accordance with, the Exchange Act, the Securities Act, applicable NASDAQ listing rules, the DGCL, DLLCA or any
other Laws relating to the Transactions (collectively, the “Other Filings”).
At a reasonable time prior to the filing, issuance or other submission or public disclosure of any Other Filing, the Acquiror and/or Company,
as applicable, shall be given an opportunity to review and comment upon drafts of such Other Filings, all reasonable comments to be accepted
and incorporated by the Party of whom such Other Filing is required, and give its prior written consent to the form thereof prior to filing,
issuance, submission or disclosure thereof, such consent not to be unreasonably withheld, conditioned or delayed.
Section 8.03
Exclusivity.
(a)
During the Interim Period, neither the Company, nor any of its Representatives acting on
its behalf (including the Company Stockholders) will (and the Company will cause its Representatives (including the Company Stockholders)
not to), directly or indirectly, initiate, solicit, encourage, provide any information with respect to, or participate in, discussions,
negotiations or transactions with any Person (other than Acquiror and its Representatives (including Sponsor)), or enter into or deliver
any agreement (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other
agreement or instrument), with respect to any sale or other disposition (however effected) of all or substantially all of the assets of
the Company or its Equity Securities other than the Transactions contemplated by this Agreement (a “Company
Alternative Transaction”) nor shall it permit any of its Representatives (including any
Company Stockholder) to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations
with, or enter into any agreement with, or encourage or respond to any proposal with respect to a Company Alternative Transaction. The
Company shall promptly advise Acquiror of any inquiry or proposal regarding a Company Alternative Transaction it may receive following
the date hereof (including the terms related thereto). The Company and its Representatives (including the Company Stockholders) shall
immediately discontinue any discussions or negotiations relating to any Company Alternative Transaction.
(b)
During the Interim Period, neither Acquiror nor any of its Representatives acting on its
behalf (including Sponsor) will (and SPAC will cause its Representatives (including Sponsor) not to), directly or indirectly, initiate,
solicit, encourage, provide any information with respect to, or participate in, discussions, negotiations and/or transactions with any
person (other than the Company and its Representatives (including the Company Stockholders)), and/or enter into or deliver any agreement
or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other
agreement or instrument), with respect to any business combination transaction involving Acquiror and all or a material portion of the
asset(s) and/or business(es) of any other person(s), whether by way of stock purchase, asset purchase, merger, business combination or
otherwise, other than the Transactions contemplated by this Agreement (a “SPAC Alternative
Transaction”) nor shall it permit any of its Representatives (including the Sponsor) to take, whether directly or indirectly,
any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage
or respond to any proposal with respect to a SPAC Alternative Transaction. Acquiror and its Representatives (including Sponsor) shall
immediately discontinue any and all discussions or negotiations relating to any SPAC Alternative Transaction.
(c)
Notwithstanding anything to the contrary, no Party shall be in breach of this Section
8.03 (including for the purposes of any of the conditions set forth in Section 9.02 or Section 9.03) unless and to the
extent that such Party has committed a Willful Breach of this Section 8.03.
Section 8.04
Tax Matters.
(a)
For U.S. federal income tax purposes (and for purposes of any applicable state or local income
tax that follows the U.S. federal income tax treatment), each of Acquiror, the Merger Sub and the Company intend that the Merger, together
with the Stock Split and the Note Conversion, be treated as an exchange described in Section 351(a) of the Code (the “Intended
Income Tax Treatment”). In addition, the Parties intend for U.S. federal income tax purposes (and for purposes of any
applicable state or local income tax that follows the U.S. federal income tax treatment) for the Stock Split to qualify as a reorganization
described in Section 368(a)(1)(E) of the Code. The Parties hereby adopt this Agreement as a “plan of reorganization”
within the meaning of Treasury Regulation Section 1.368-2(g) with respect to the Stock Split. The Parties will prepare and file all Tax
Returns in a manner consistent with the Intended Income Tax Treatment and the intended tax treatment of the Stock Split set forth in this
Section 8.04(a) and will not take any inconsistent position on any Tax Return or during the course of any audit,
litigation or other proceeding with respect to Taxes, except as otherwise required by a determination within the meaning of Section 1313(a)
of the Code. Each of Acquiror, the Merger Sub and the Company agrees to promptly notify all other Parties of any challenge to the Intended
Income Tax Treatment or the Merger, by any Governmental Authority. Acquiror, the Merger Sub and the Company shall reasonably cooperate
with each other and their respective counsel to document and support the treatment of the Merger in a manner consistent with the Intended
Income Tax Treatment, including by providing customary factual support letters, if requested.
(b) None
of Acquiror, the Merger Sub or the Company shall take or cause to be taken, or knowingly fail to take or cause to be taken, any
action which could reasonably be expected to prevent the Merger from qualifying for the Intended Income Tax Treatment. The Surviving
Acquisition Entity shall not be liquidated for a period of twenty-four (24) months following the Closing Date, and the Surviving
Acquisition Entity shall retain sufficient assets during such twenty-four (24) months such that the Surviving Acquisition Entity is
not considered to be deemed to be liquidated for U.S. federal income tax purposes (which assets shall not be less than twenty-five
percent (25%) of the cash in the Trust Account immediately following the deduction of amounts required to satisfy the Acquiror
Stockholder Redemptions). For purposes of the immediately preceding sentence, the Surviving Acquisition Entity may make loans to
other Persons and the obligations to the Surviving Acquisition Entity as a result of such loans shall be taken into account
in determining the assets of the Surviving SPAC. Acquiror, the Merger Sub or the Company shall not take any other action that is
inconsistent with the intended tax treatment of the Stock Split and Merger described in Section
8.04(a).
(c)
All transfer, stamp, documentary, sales, use, registration, value-added and other similar
Taxes (including all applicable real estate transfer Taxes) incurred in connection with this Agreement and the transactions contemplated
hereby (“Transfer Taxes”) will be borne by Acquiror. Each of Acquiror, the
Merger Sub and the Company shall use reasonable best efforts to obtain any certificate or other document from any Governmental Authority
or any other Person as may be reasonably necessary to mitigate, reduce or eliminate any Transfer Tax that could be imposed in connection
with the transactions contemplated hereby.
(d)
If, in connection with the preparation and filing of the Registration Statement and Proxy
Statement, the SEC requests or requires that Tax opinions be prepared and submitted in such connection, the Parties, as applicable, shall
use commercially reasonable efforts to deliver to Kirkland & Ellis LLP (or such other reputable law or accounting firm with expertise
in U.S. federal income Tax matters mutually agreed (an “Alternative Advisor”))
customary Tax representation letters satisfactory to Kirkland & Ellis LLP (or such Alternative Advisor, as the case may be) dated
and executed as of the date the Registration Statement and Proxy Statement shall have been declared effective by the SEC and such other
date(s) as determined reasonably necessary by such counsel in connection with the preparation and filing of the Registration Statement
and Proxy Statement, and, if required, Kirkland & Ellis LLP (or such Alternative Advisor, as applicable) shall furnish an opinion
to Acquiror, subject to customary assumptions and limitations, to the effect that the intended U.S. federal income tax treatment should
apply to the applicable Transactions.
Section 8.05
Confidentiality; Publicity.
(a)
Acquiror acknowledges that the information being provided to it in connection with this Agreement
and the Transactions is subject to the terms of the Confidentiality Agreement, the terms
of which are incorporated herein by reference. The Confidentiality Agreement shall survive the execution and delivery of this Agreement
and shall apply to all information furnished thereunder or hereunder and any other activities contemplated thereby.
(b)
None of Acquiror, the Company or any of their respective Affiliates shall make any public
announcement or issue any public communication regarding this Agreement or the Transactions, or any matter related to the foregoing, without
first obtaining the prior consent of the Company or Acquiror, as applicable (which consent shall not be unreasonably withheld, conditioned
or delayed), except if such announcement or other communication is required by applicable Law, in which case Acquiror or the Company,
as applicable, shall use their reasonable best efforts to coordinate such announcement or communication with the other Party, prior to
announcement or issuance; provided, that each Party and its Affiliates may make announcements regarding the status and terms (including
price terms) of this Agreement and the Transactions to their respective Representatives and indirect current or prospective limited partners
or investors or otherwise in the ordinary course of their respective businesses, in each case, so long as such recipients are obligated
to keep such information confidential without the consent of any other Party; and provided, further, that the foregoing
shall not prohibit any Party from communicating with third parties to the extent necessary for the purpose of seeking any third party
consent or with any Governmental Authorities under Section 8.01.
Section 8.06 Post-Closing
Directors and Officers. Conditioned upon the occurrence of the Closing, Company shall take
all such action within its power as may be necessary or appropriate such that effective as of the Effective Time, the board
of directors and officers of Company will be comprised of the persons appointed by the Company.
Section 8.07
PIPE Investment. During the Interim Period, Acquiror shall use reasonable best efforts
to identify and obtain commitments from PIPE Investors for an investment in an aggregate amount of $10,000,000 (“PIPE
Investment”) in exchange for a certain number of shares of Acquiror Class A Common Stock (“PIPE Securities”)
of the Acquiror, to be consummated concurrently with the Closing but immediately before the Effective Time.
In connection with the Merger, each PIPE Investor shall receive one share of PIPE Securities of the Company for each share of PIPE Securities
of the Acquiror. The terms of the PIPE Investment shall be mutually agreed upon by Acquiror and the Company and set forth in subscription
or purchase agreements in form and substance satisfactory to each of them (the “PIPE Agreements”).
Acquiror will prepare the PIPE Agreements, or cause the PIPE Agreements to be prepared. The Company shall reasonably cooperate in obtaining
the PIPE Investment and preparing the PIPE Agreements by, in a timely manner, (i) providing such information and assistance as the
Acquiror may reasonably request, (ii) granting such access to potential PIPE Investors and their Representatives as may reasonably
be necessary for their due diligence and (iii) causing its and its Subsidiaries’ respective senior management teams to participate
in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to the PIPE Investment,
subject, in the case of clauses (i) and (ii), to confidentiality obligations and similar restrictions that may be applicable to information
furnished to the Company or any of its Subsidiaries by third parties, and except, in the case of clauses (i) and (ii), for any information
which (x) is prohibited from being disclosed by applicable Law or (y) on the advice of legal counsel of the Company would result
in the loss of attorney-client privilege or other privilege from disclosure. Acquiror shall use its 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 to cause the PIPE Investment to be consummated
on the terms set forth in the PIPE Agreements, including using its best efforts to (i) maintain in full force and effect the PIPE
Agreements in accordance with the terms thereof, (ii) satisfy on a timely basis all conditions to obtaining the PIPE Investment set
forth in the PIPE Agreements that are applicable to Acquiror and within the control of Acquiror, (iii) cause the investors to fund
the PIPE Investment concurrently with the Closing, (iv) comply on a timely basis with Acquiror’s obligations under the PIPE
Agreements, and (v) enforce Acquiror’s rights under the PIPE Agreements.
Section 8.08
Stock Exchange Listing. From the date hereof through the Closing, Acquiror and the Company shall use their reasonable best
efforts to cause the shares constituting the Closing Share Consideration to be approved for listing on a Stock Exchange, subject only
to official notice of issuance, as promptly as practicable after the date of this Agreement, and in any event prior to the Closing Date
and to cause the Company to satisfy any applicable initial listing requirements of the applicable Stock Exchange.
Section 8.09 Sponsor
Investment Adjustment. If, after the Registration Statement Effectiveness Date and before the Effective Time, the Company
issues any Equity Securities (limited, in the case of Equity Securities that are convertible into or exchangeable for shares of any class
or series of stock of the Company, to such Equity Securities that would be converted into or exchanged for such shares in connection
with the Transactions, and excluding (i) adjustment issuances as a result of stock splits, dividends and recapitalizations and (ii) equity
awards issued to employees (“Excluded Securities”)), the Parties hereby agree as follows:
(a) If the Company issues any
such Equity Securities other than Excluded Securities to any Person or Persons at an average cost basis (the “New Purchase Price”)
that is less than $10.00 per share of Company Common Stock (or, in the case of any Equity Securities other than Excluded Securities that
are convertible into or exchangeable for shares of any class or series of stock of the Company, that are convertible or exchangeable
for shares of any class or series of stock of the Company at an effective conversion rate of less than $10.00 per share of Company Common
Stock), then (i) the Convertible Notes shall be deemed to be amended to reflect that the number of shares of Company Common Stock issuable
upon conversion of the Convertible Notes shall be equal to the Outstanding Amount (used in this Section 8.09 as defined in the
Convertible Notes) divided by the New Purchase Price and (ii) the Insider Subscription Agreements shall be deemed to be amended to reflect
that the number of shares of Class A Common Stock (used in this Section 8.09 as defined in the Insider Subscription Agreements)
to be issued to the Investor (used in this Section 8.09 as defined in the Insider Subscription Agreements) shall be equal to the
Subscription Amount (used in this Section 8.09 as defined in the Insider Subscription Agreements) divided by the New Purchase
Price (the “New Share Amount”).
(b)
If the Company issues any such Equity Securities other than Excluded Securities to any Person or Persons that are not Affiliates of the
Sponsor, the Company, or any officer or director of the Company (it being acknowledged and agreed that for this purpose Affiliates shall
include any individual related by blood (including through adoption) or marriage or any domestic partnership or similar legal arrangement
to any officer or director of the Company) at a New Purchase Price that is greater than $10.00 per share of Company Common Stock (or,
in the case of any Equity Securities other than Excluded Securities that are convertible into or exchangeable for shares of any class
or series of stock of the Company, that are convertible or exchangeable for shares of any class or series of stock of the Company at an
effective conversion rate of more than $10.00 per share of Company Common Stock), then (i) the Convertible Notes shall be deemed to be
amended to reflect that the number of shares of Company Common Stock issuable upon conversion of the Convertible Notes shall be equal
to the Outstanding Amount divided by the New Purchase Price and (ii) the Insider Subscription Agreements shall be deemed to be amended
to reflect that the number of shares of Class A Common Stock to be issued to the Investor shall be equal to the New Share Amount.
Article
IX
Conditions to Obligations
Section 9.01
Conditions to Obligations of All Parties. The obligations of the Parties to consummate,
or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which may be waived
(if legally permitted) in writing by all of the Parties:
(a)
Competition Approvals. The applicable waiting period under the HSR Act in respect
of the Transactions shall have expired or been terminated, or it shall have been determined and agreed by the Parties that no filing or
waiting period under the HSR Act is required in respect of the Transactions.
(b)
No Prohibition. There shall not be in force and effect any (i) Law or (ii) Governmental
Order by any Governmental Authority of competent jurisdiction, in either case, enjoining, prohibiting, or having the effect of making
illegal the consummation of the Merger.
(c)
Acquiror Stockholder Approval. The Required Acquiror Stockholder Approval shall have
been obtained.
(d)
Company Stockholder Approval. The Company Stockholder Approval shall have been obtained.
(e)
Stock Exchange Approval. The shares constituting the Closing Share Consideration shall
have been authorized for listing on a Stock Exchange, subject to official notice of issuance.
Section 9.02
Additional Conditions to Obligations of Acquiror. The obligations of Acquiror to consummate,
or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which
may be waived (in whole or in part) in writing by Acquiror in its sole discretion:
(a)
Representations and Warranties.
(i) Each
of the representations and warranties of the Company Parties contained in Section 4.01 (Corporate Organization of the
Company), Section 4.02 (Subsidiaries) Section
4.03 (Due Authorization), Section 4.16 (Taxes), Section
4.20 (Environmental Matters) and Section 4.21 (Brokers’
Fees) (collectively, the “Specified
Representations”) shall be true and correct (without giving any effect to any limitation as to
“materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all
material respects as of the Closing Date as though then made (except to the extent such representations and warranties expressly
relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date).
(ii)
The representations and warranties of the Company contained in Section 4.06 (Capitalization)
shall be true and correct in all respects, other than de minimis inaccuracies, as of the Closing Date, as though then made.
(iii)
Each of the other representations and warranties of the Company contained in Article IV
shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse
Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations
and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except,
in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate,
has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(b) Agreements
and Covenants. The covenants and agreements of the Company in this Agreement to be performed as of or prior to the Closing shall
have been performed in all material respects.
(c) Officer’s
Certificate. The Company shall have delivered to Acquiror a certificate, dated the Closing Date, to the effect that the conditions
specified in Section 9.02(a) and Section 9.02(b) have been satisfied.
(d) Lockup
Agreement. The Company Stockholders shall have each duly executed and delivered a copy of the Lockup Agreement to Acquiror and the
Sponsor.
(e) Repayment
of Employee Loans. Each Employee Loan identified on Schedule 6.07 shall have been repaid in full prior to the Closing Date.
(f) Assignment and
Transfer of Material Contracts to PRC Subsidiaries. The Company shall procure that the relevant PRC Subsidiaries shall have completed
the assignment and transfer of the material Contracts as set forth in Schedule 9.02(f) to the relevant PRC Subsidiaries.
(g) Transfer of Intellectual
Property. The Company and/or its Subsidiaries shall have purchased and acquired all the Intellectual Property as set forth on Schedule
4.19(a), including entering into transfer agreements with affiliates of the Company or the Divested PRC Entities, as applicable,
and submitting all necessary filings with the relevant Governmental Authorities for the assignment and transfer of the Intellectual Property
to the Company or its Subsidiaries (as applicable).
(h) Consummation of Acquisitions.
The Company or any of its Subsidiaries, as applicable, shall have consummated the transactions set forth on Schedule 9.02(h).
(i) Legal Title to Real Property.
The Company shall have acquired legal title to the Real Property set forth on Schedule 9.02(i).
(j) Registration
Rights Agreement. The Registration Rights Agreement shall have been duly executed by the Company.
Section 9.03 Additional
Conditions to the Obligations of the Company. The obligation of the Company to consummate or
cause to be consummated the Transactions is subject to the satisfaction of the following additional conditions, any one or more of which
may be waived (in whole or in part) in writing by the Company in its sole discretion:
(a)
Representations and Warranties.
(i) Each
of the representations and warranties of Acquiror contained in Section 5.01 (Corporate Organization),
Section 5.02 (Subsidiaries), Section 5.03 (Due Authorization)
and Section 5.11 (Brokers’ Fees) shall be true and correct (without giving
any effect to any limitation as to “materiality” or any similar limitation set forth therein) in all material respects as
of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to an earlier date,
and in such case, shall be true and correct on and as of such earlier date).
(ii)
The representations and warranties of Acquiror contained in Section 5.17 (Capitalization)
shall be true and correct in all respects, other than de minimis inaccuracies, as of the Closing Date, as though then made.
(iii)
Each of the other representations and warranties of Acquiror contained in Article V
shall be true and correct (without giving any effect to any limitation as to “materiality” or “Acquiror Material Adverse
Effect” or any similar limitation set forth therein) as of the Closing Date as though then made (except to the extent such representations
and warranties expressly relate to an earlier date, and in such case, shall be true and correct on and as of such earlier date), except,
in either case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate,
has not had, and would not reasonably be expected to have, an Acquiror Material Adverse Effect.
(b)
Agreements and Covenants. The covenants and agreements of Acquiror in this Agreement
to be performed as of or prior to the Closing shall have been performed in all material respects.
(c)
Officer’s Certificate. Acquiror shall have delivered to the Company a certificate
signed by an officer of Acquiror, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions
specified in Section 9.03(a) and Section 9.03(b) have been satisfied.
(d)
Lockup Agreement. Acquiror and Sponsor shall have each duly executed and delivered
a copy of the Lockup Agreement to the Company Stockholders.
(e)
Registration Rights Agreement. The Registration Rights Agreement shall have been duly
executed by the Sponsor.
(f)
Trust Account. In accordance with and pursuant to the Trust Agreement, Acquiror shall
have made all necessary and appropriate arrangements with the trustee to the Trust Account to have, subject to Section 7.02, all
of the funds contained in the Trust Account disbursed to Acquiror, all of the funds contained in the Trust Account shall have been actually
disbursed to Acquiror, and all such funds disbursed from the Trust Account to Acquiror shall be available to Acquiror in respect of all
of the obligations of Acquiror set forth in this Agreement.
(g)
Financing. The Acquiror shall have consummated the Investment in accordance with the
terms of the Note Purchase Agreement and the Insider Subscription Agreements.
(h) Sponsor Support Agreement.
The Sponsor Support Agreement shall be in full force and effect.
(i) Underwriting Commission
Reduction. The amounts due to the underwriters of Acquiror’s initial public offering for their deferred underwriting commissions
shall have been waived or otherwise reduced such that the total amount thereof shall be no greater than $1,000,000 plus up to $250,000
for direct out of pocket expenses incurred by the underwriters in connection with the Merger, upon presentation of invoices supporting
such expenses.
Article
X
Termination/Effectiveness
Section 10.01 Termination.
This Agreement may be validly terminated and the Transactions may be abandoned at any time prior to the Closing only as follows (it being
understood and agreed that this Agreement may not be terminated for any other reason or on any other basis):
(a)
by mutual written agreement of Acquiror and
the Company;
(b)
by either Acquiror or the Company, if there shall be in effect any (i) Law or (ii) Governmental
Order (other than, for the avoidance of doubt, a temporary restraining order), that (x) in the case of each of clauses (i) and (ii),
permanently restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Merger, and (y) in the case of clause (ii)
such Governmental Order shall have become final and non-appealable;
(c)
by either Acquiror or the Company, if the Effective Time has not occurred by 11:59 p.m.,
New York City time, on September 30, 2024 (the “Termination Date”); provided,
however, that (i) if the SEC has not declared the Proxy Statement effective on or prior to September 1, 2024, the Termination
Date shall be automatically extended to October 31, 2024 and (ii) in the event that any Investment Screening Law is enacted, after
the date of this Agreement, by any Governmental Authority in the jurisdiction set forth on Schedule 10.01 with effectiveness prior
to the Closing that require the consent of such Governmental Authority for the consummation of the Merger, the Termination Date shall
automatically be extended by 90 days from the effective date of such Investment Screening Law; provided, further, that the
right to terminate this Agreement pursuant to this Section 10.01(c) will not be available to any Party whose material breach of
any provision of this Agreement caused or resulted in the failure of the Merger to be consummated by such time;
(d)
by either Acquiror or the Company, if Acquiror fails to obtain the Required Acquiror Stockholder
Approval upon vote taken thereon at a Special Meeting (or at a meeting of its stockholders following any adjournment or postponement thereof);
provided that the right to terminate this Agreement under this Section 10.01(d) shall not be available to any Party if such
Party has materially breached Section 8.02;
(e) by
Acquiror, if a Company Party has breached or failed to perform any of its representations, warranties, covenants or other agreements
contained in this Agreement, which breach or failure to perform (i) would result in the failure of a condition set forth in Section
9.02(a) or Section 9.02(b) to be satisfied at the Closing and (ii) is not capable of being cured by such Company
Party by the Termination Date or, if capable of being cured by such Company Party by the Termination Date, is not cured by such
Company Party before the earlier of (x) the third (3rd) Business Day immediately prior to the Termination Date and
(y) the forty-fifth (45th) day following receipt of written notice from Acquiror of such breach or failure to
perform: provided that Acquiror shall not have the right to terminate this Agreement pursuant to this Section
10.01(e) if it is then in material breach of any of its representations, warranties, covenants or other agreements contained in
this Agreement;
(f) by
the Company, if Acquiror has breached or failed to perform any of its respective representations, warranties, covenants or other agreements
contained in this Agreement, which breach or failure to perform (i) would result in the failure of a condition set forth in Section
9.03(a) or Section 9.03(b) to be satisfied at the Closing and (ii) is not capable of being cured by the Termination Date
or, if capable of being cured by Acquiror by the Termination Date, is not cured by Acquiror before the earlier of (x) the 3rd
(third) Business Day immediately prior to the Termination Date and (y) the 45th (forty-fifth) day following receipt
of written notice from the Company of such breach or failure to perform; provided that the Company shall not have the right to
terminate this Agreement pursuant to this Section 10.01(f) if it is then in material breach of any of its representations, warranties,
covenants or other agreements contained in this Agreement; or
(g) by
Acquiror, by written notice to the Company, if the Company fails to deliver the Company Stockholder Approval, duly executed by the Company
Stockholders, within five (5) days following the Registration Statement Effectiveness Date; provided that Acquiror shall have
no right to terminate this Agreement pursuant to this Section 10.01(g) at any time following the delivery of the Company Stockholder
Approval, even if the Company Stockholder Approval is delivered following such five (5) day period.
Section 10.02 Effect of
Termination. Except as otherwise set forth in this Section 10.02 or Section 11.13,
in the event of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become void and have
no effect, without any liability on the part of any Party or its Affiliates, or its Affiliates’ Representatives, other than liability
of any Party for any Fraud or any Willful Breach of this Agreement by such Party occurring prior to such termination. The provisions
of Section 8.05 (Confidentiality; Publicity), this Section 10.02 (Effect
of Termination) and Article XI (Miscellaneous)
(collectively, the “Surviving Provisions”) and the Confidentiality Agreement, shall in each case survive any termination
of this Agreement.
Article
XI
Miscellaneous
Section 11.01 Waiver.
At any time and from time to time prior to the Closing, Acquiror and the Company may, to the extent legally allowed and except as otherwise
set forth herein, (a) extend the time for the performance of any of the obligations or other acts of the other Party, as applicable;
(b) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered
pursuant hereto; and (c) subject to the requirements of applicable Law, waive compliance by the other Party with any of the agreements
or conditions contained herein applicable to such Party (it being understood that the Company and Merger Sub shall each be deemed a single
Party for purposes of this Section 11.01). Any agreement on the part of a Party to any such extension or waiver will be valid
only if set forth in an instrument in writing signed by such Party. Any delay in exercising any right pursuant to this Agreement will
not constitute a waiver of such right.
Section 11.02 Notices.
All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when
delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return
receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service or (iv) when
e-mailed during normal business hours (and otherwise as of the immediately following Business Day), addressed as follows:
(a)
If to Acquiror to:
OCA Acquisition Corp.
1345 Avenue of the Americas, 33rd Floor
New York, New York 10022
Attn: David Shen
Email: [***]
with a copy (which shall not constitute
notice) to:
Kirkland & Ellis LLP
609 Main Street
Houston, Texas 77002
Attn: Christian O. Nagler, P.C.; Marshall P. Shaffer, P.C.
E-mail: [***]; [***]
(b)
If to the Company or Merger Sub to:
Powermers Smart Industries Inc.
1500 Broadway, Suite 3300A
New York, New York 10036
Attention: Chris Thorne
Email: [***]
with a copy (which shall not constitute
notice) to:
Graubard Miller
405 Lexington Avenue, 44th Floor
New York, New York 10174
Attention: David A. Miller; Jeffrey M. Gallant
Email: [***]; [***]
or to such other address or addresses as the Parties
may from time to time designate in writing. Without limiting the foregoing, any Party may give any notice, request, instruction, demand,
document or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary
mail or electronic mail), but no such notice, request, instruction, demand, document or other communication shall be deemed to have been
duly given unless and until it actually is received by the Party for whom it is intended.
Section 11.03 Assignment.
No Party shall assign this Agreement or any part hereof without the prior written consent of the other Parties. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Any
attempted assignment in violation of the terms of this Section 11.03 shall be null and void, ab initio.
Section 11.04 Rights of
Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed
to confer upon or give any Person, other than the Parties, any right or remedies under or by reason of this Agreement; provided that
notwithstanding the foregoing (a) in the event the Closing occurs, D&O Indemnitees are intended third-party beneficiaries of,
and may enforce, Section 7.01, (b) the Non-Recourse Parties are intended third-party beneficiaries of, and may enforce, Section
11.14 and Section 11.15 and (c) the Company Stockholders are intended third-party beneficiaries of, and may enforce,
Section 11.17.
Section 11.05 Expenses.
Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the other Transaction
Documents and the Transactions, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by
the Party incurring such fees or expenses; provided, for the avoidance of doubt, that (a) if this Agreement is terminated in accordance
with its terms, the Company Group shall pay, or cause to be paid, all unpaid Company Transaction Expenses and Acquiror shall pay, or
cause to be paid, all unpaid Acquiror Transaction Expenses and (b) if the Closing occurs, then Acquiror shall pay, or cause to be paid,
all unpaid Acquiror Transaction Expenses and all unpaid Company Transaction Expenses.
Section 11.06 Governing
Law. This Agreement, and all Actions or causes of action based upon, arising out of, or related
to this Agreement or the Transactions, shall be governed by, and construed in accordance with, the internal substantive Laws of the State
of Delaware applicable to contracts entered into and to be performed solely within such state, without giving effect to principles or
rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
Section 11.07 Captions;
Counterparts. The captions in this Agreement are for convenience only and shall not be considered
a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 11.08 Schedules
and Exhibits. The Schedules and Exhibits referenced herein are a part of this Agreement as
if fully set forth herein. All references herein to Schedules and Exhibits shall be deemed references to such parts of this Agreement,
unless the context shall otherwise require. Certain information set forth in the Schedules is included solely for informational purposes.
The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed
in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard
of materiality.
Section 11.09 Entire Agreement.
This Agreement (together with the Schedules and Exhibits to this Agreement), the other Transaction Agreements and Confidentiality Agreement
constitute the entire agreement among the Parties relating to the transactions contemplated hereby and thereby and supersede any other
agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective
Subsidiaries relating to the Transactions.
Section 11.10 Amendments.
This Agreement may be amended or modified in whole or in part only by an agreement in writing executed by each of the Parties in the
same manner as this Agreement and which makes reference to this Agreement. The approval of this Agreement by the stockholders of any
of the Parties shall not restrict the ability of the board of directors (or other body performing similar functions) of any of the Parties
to terminate this Agreement in accordance with Section 10.01 or to cause such Party to enter into an amendment to this Agreement
pursuant to this Section 11.10.
Section 11.11 Severability.
If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent,
held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render
the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law.
Section 11.12 Jurisdiction;
WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this
Agreement or the Transactions shall be brought in the Delaware Court of Chancery, and if the Delaware Court of Chancery does
not have or take jurisdiction over such Action, any other federal or state courts located in the State of Delaware, and each of the
Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or
hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be
heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the
Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any
manner permitted by Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in
each case, to enforce judgments obtained in any Action brought pursuant to this Section
11.12. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS.
Section 11.13 Enforcement.
The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur
in the event that the Parties do not perform their obligations under the provisions of this Agreement (including failing to take such
actions as are required of them hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such
provisions. The Parties acknowledge and agree that (i) the Parties shall be entitled to an injunction, specific performance, or
other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without proof
of damages, prior to the valid termination of this Agreement in accordance with Section 10.01, this being in addition to any other
remedy to which they are entitled under this Agreement or any Transaction Agreement, and (ii) the right of specific enforcement
is an integral part of the transactions contemplated by this Agreement and without that right, none of the Parties would have entered
into this Agreement. Each Party agrees that it will not allege, and each Party hereby waives the defense, that the other Parties have
an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The
Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this and to enforce specifically the terms
and provisions of this Agreement in accordance with this Section 11.13 shall not be required to provide any bond or other security
in connection with any such injunction.
Section 11.14 Non-Recourse.
This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement
or the Transactions may only be brought against, the Parties and then only with respect to the specific obligations set forth herein
with respect to such Party. Except to the extent a Party intentionally breaches the terms of this Agreement (and then only to the extent
of the specific obligations undertaken by such Party in this Agreement), (a) no past, present or future director, officer, employee,
sponsor, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any Party
and (b) no past, present or future director, officer, employee, sponsor, incorporator, member, partner, stockholder, Affiliate,
agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort,
equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities
of any one or more of the Company, Acquiror or the Merger Sub under this Agreement of or for any claim based on, arising out of, or related
to this Agreement or the Transactions (each of the Persons identified in clauses (a) or (b), a “Non-Recourse Party”,
and collectively, the “Non-Recourse Parties”). For the avoidance of doubt, this Section 11.14 shall not apply to any
express obligation of any named party to any other Transaction Agreements under the express terms of such Transaction Agreement.
Section 11.15 Non-Survival.
Notwithstanding anything herein or otherwise to the contrary, none of the representations, warranties, covenants, obligations or
other agreements of the Parties contained in this Agreement or in any certificate delivered pursuant to this Agreement, including
any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions,
shall survive the Closing, and, from and after the Closing, no Action shall be brought and no recourse shall be had against
or from any Person in respect of such non-surviving representations, warranties, covenants or agreements, other than in the case of
Fraud. All such representations, warranties, covenants, obligations and other agreements shall terminate and expire upon the
occurrence of the Effective Time (and there shall be no liability after the Closing in respect thereof). Notwithstanding the
foregoing, (a) those covenants and agreements contained herein that by their terms expressly require performance after the
Closing shall survive the Effective Time but only with respect to that portion of such covenant or agreement that is expressly to be
performed following the Closing, and (b) this Article XI shall survive the
Closing. For the avoidance of doubt, the terms of the Lockup Agreement and Registration Rights Agreement shall not be affected by
this Section 11.15.
Section 11.16
Non-Reliance.
(a)
Each of the Parties acknowledges and agrees (on its own behalf and on behalf of its respective
Affiliates and its and their respective Representatives) that: (i) it has conducted its own independent investigation of the financial
condition, results of operations, assets, liabilities, properties and projected operations of the other Parties (and, in the case of the
Company, its Subsidiaries) and has been afforded satisfactory access to the books and records, facilities and personnel of the other Parties
(and their respective Subsidiaries) for purposes of conducting such investigation; (ii) the representations and warranties in Article
IV constitute the sole and exclusive representations and warranties in respect of each Company Party and its Subsidiaries (if applicable);
(iii) the representations and warranties in Article V constitute the sole and exclusive representations and warranties in
respect of Acquiror; (iv) except for the representations and warranties in Article IV by the Company Parties and the representations
and warranties in Article V by Acquiror, none of the Parties or any other Person (including any of the Non-Recourse Parties) makes,
or has made, any other express or implied representation or warranty with respect to any Party (or any Party’s Subsidiaries), 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 such Party or its Subsidiaries or the transactions contemplated by this Agreement and all other representations
and warranties of any kind or nature expressed or implied (including (x) regarding the completeness or accuracy of, or any omission
to state or to disclose, any information, including in the estimates, projections or forecasts or any other information, document or material
provided to or made available to any Party or their respective Affiliates or Representatives in certain “data rooms,” management
presentations or in any other form in expectation of the Transactions, including meetings, calls or correspondence with management of
any Party (or any Party’s Subsidiaries), and (y) any relating to the future or historical business, condition (financial or
otherwise), results of operations, prospects, assets or liabilities of any Party (or its Subsidiaries), or the quality, quantity or condition
of any Party’s or its Subsidiaries’ assets) are specifically disclaimed by all Parties and their respective Subsidiaries and
all other Persons (including the Representatives and Affiliates of any Party or its Subsidiaries); and (v) neither Party nor any
of its Affiliates is relying on any representations and warranties in connection with the Transactions except the representations and
warranties in Article IV by the Company and the representations and warranties in Article V by Acquiror. The foregoing does
not limit any rights of any Party (or any other Person party to any other Transaction Agreements) pursuant to any other Transaction Agreement
against any other Party (or any other Person party to any other Transaction Agreements) pursuant to such Transaction Agreement to which
it is a party or an express third party beneficiary thereof.
(b)
The Company acknowledges that any restatement, revision or other modification of the SEC Reports in connection with the review
of any agreements, orders, comments or other guidance from the staff of the SEC, whether made prior to or following the date of this Agreement,
regarding the accounting policies of the Acquiror included in any SEC Reports shall be deemed not material for purposes of this Agreement
so long as such restatement, revision or other modification is applied on a consistent basis to all similarly situated blank check companies
like Acquiror.
Section 11.17 Waiver of
Conflicts Regarding Representations; Non-Assertion of Attorney-Client Privilege.
(a) Conflicts
of Interest.
(i) The
Parties, including on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to this
Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the stockholders or holders of other
Equity Interests of Acquiror and/or any of their respective directors, members, partners, officers, employees or Affiliates (other than
Acquiror) (collectively, the “Acquiror Group”), on the one hand, and (y) Acquiror
and/or any member of the Company Group (as defined below), on the other hand, any legal counsel, including Kirkland & Ellis
LLP (“K&E”), that represented Acquiror or a member of
the Acquiror Group prior to the Closing may represent any member of the Acquiror Group in such dispute even though the interests of such
Persons may be directly adverse to Acquiror, and even though such counsel may have represented Acquiror in a matter substantially related
to such dispute, or may be handling ongoing matters for Acquiror and/or another member of the Acquiror Group. Neither Acquiror nor the
Company shall seek to or have K&E disqualified from any such representation with respect to this Agreement or the Transactions based
upon the prior representation of the Acquiror Group by K&E. The Parties hereby waive any potential conflict of interest arising from
such prior representation and each Party shall cause its respective Affiliates to consent to waive any potential conflict of interest
arising from such representation. Each Party acknowledges that such consent and waiver is voluntary, that it has been carefully considered,
and that such Party has consulted with counsel in connection therewith. Acquiror and the Company, including on behalf of their respective
successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in connection with
the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this
Agreement, any Transaction Agreement or the Transactions contemplated hereby or thereby) between or among Acquiror, Sponsor and/or any
other member of the Acquiror Group, on the one hand, and K&E on the other hand, the attorney/client privilege and the expectation
of client confidence shall survive the Closing and belong to the Acquiror Group after the Closing, and shall not pass to or be claimed
or controlled by Acquiror.
(ii) The
Parties, including on behalf of their respective successors and assigns, hereby agree that, in the event a dispute with respect to
this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the stockholders or
holders of other Equity Interests of Company and/or any of its Subsidiaries and/or any of their respective directors, members,
partners, officers, employees or Affiliates (other than the Company or its Subsidiaries) (collectively, the “Company
Group”), on the one hand, and (y) the Company and/or any member of the Acquiror Group, on the other hand, any
legal counsel, including Graubard Miller (“Graubard”) or Paul Hastings
LLP (“Paul Hastings”), that represented Company or any of its
Subsidiaries or another member of the Company Group prior to the Closing may represent any member of the Company Group in such
dispute even though the interests of such Persons may be directly adverse to the Company, and even though such counsel may have
represented the Company in a matter substantially related to such dispute, or may be handling ongoing matters for Company and/or a
member of the Company Group. Neither Acquiror nor the Company shall seek to or have Graubard or Paul Hastings disqualified from any
such representation with respect to this Agreement or the Transactions based upon the prior representation of the Company Group by
Graubard and/or Paul Hastings. The Parties hereby waive any potential conflict of interest arising from such prior representation
and each Party shall cause its respective Affiliates to consent to waive any potential conflict of interest arising from such
representation. Each Party acknowledges that such consent and waiver is voluntary, that it has been carefully considered, and that
such Party has consulted with counsel in connection therewith. Acquiror and the Company, including on behalf of their
respective successors and assigns, further agree that, as to all legally privileged communications prior to the Closing (made in
connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or
relating to, this Agreement, any Transaction Agreement or the Transactions contemplated hereby or thereby) between or among the
Company and its Subsidiaries, the Company Stockholders and/or any other member of the Company Group, on the one hand, and Graubard
or Paul Hastings on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Closing
and belong to the Company Group after the Closing, and shall not pass to or be claimed or controlled by Acquiror.
(b)
Non-Exclusivity. The covenants, consents and waivers contained in this Section
11.17 shall not be deemed exclusive of any other rights to which K&E, Graubard or Paul Hastings are entitled whether pursuant
to law, contract or otherwise.
(c)
Attorney-Client Privilege. Each of Acquiror, Merger Sub, and the Company (each on
behalf of itself and its Affiliates) waives and shall not assert any attorney-client privilege, attorney work-product protection or expectation
of client confidence with respect to any communication between their respective legal counsel (“Prior Counsel”), on
the one hand, and any of the Acquiror’s, Merger Sub’s or the Company’s or Subsidiaries’ respective officers, employees
and directors (collectively, the “Pre-Closing Designated Persons”) on the
other hand, or any advice given to any Pre-Closing Designated Person by Prior Counsel, relating to this Agreement or any other Transaction
Documents or transactions contemplated hereby or thereby (including any matter that may be related to litigation, a claim or dispute arising
under or related to this Agreement or such other Transaction Documents or in connection with such transactions) (each, an “Existing
Representation”) (collectively, “Pre-Closing Privileges”) in connection
with any post-closing representation, including in connection with a dispute between any Designated Person and one or more of Acquiror,
Merger Sub, the Company and their respective Affiliates, it being the intention of the Parties that all rights to such Pre-Closing Privileges,
and all rights to waiver or otherwise control such Pre-Closing Privilege, shall be retained
by the Company Stockholder, and shall not pass to or be claimed or used by Acquiror or the Company and its Subsidiaries, except as expressly
provided in the last sentence of this Section 11.17(c). Notwithstanding the foregoing, in the event that a dispute arises between
Acquiror or any of the Company and its Subsidiaries, on the one hand, and a third party other than a Designated Person, on the other hand,
the Company shall (and shall cause its Affiliates to) assert the Pre-Closing Privileges on behalf of the Designated Persons to prevent
disclosure of Privileged Materials (defined below) to such third party; provided, however, that such privilege may be waived
only with the prior written consent, and shall be waived upon the written instruction, of the Company Stockholder.
(d)
Enforceability; Irrevocability. This Section 11.17 is intended for the benefit
of, and shall be enforceable by, the Acquiror Group and the Company Group. This Section 11.17 shall be irrevocable, and no term
of this Section 11.17 may be amended, waived, or modified without the prior written consent of K&E, Graubard or Paul Hastings,
as applicable.
(e) Privileged
Materials. All such Pre-Closing Privileges, and all books and records and other documents of the Company and its Subsidiaries
containing any advice or communication that is subject to any Pre-Closing Privilege (“Privileged
Materials”), shall be excluded from the Transactions and, notwithstanding anything herein or otherwise to the
contrary, be distributed to the Company Stockholders (on behalf of the applicable Designated Persons) immediately prior to the
Closing with (in the case of such books and records) no copies retained by the Company and its Subsidiaries. Absent the prior
written consent of the Company Stockholders, neither Acquiror nor (following the Closing) the Company shall have a right of access
to Privileged Materials. Notwithstanding the foregoing, any privileged communications or information shared by the Company
prior to the Closing with the Acquiror under a common interest agreement shall remain the privileged communications or information
of the Surviving Acquisition Entity.
Section 11.18
Currency. All references to currency amounts in this Agreement shall mean United States
dollars.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement and Plan of Merger to be duly executed as of the date hereof.
|
OCA ACQUISITION CORP. |
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A Delaware corporation |
|
|
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By: |
/s/ David Shen |
|
Name: |
David Shen |
|
Title: |
Chief Executive Officer and President |
|
|
|
POWR MERGER SUB, LLC |
|
A Delaware limited liability company |
|
|
|
By: |
/s/ Christopher Thorne |
|
Name: |
Christopher Thorne |
|
Title: |
Chief Executive Officer |
|
|
|
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POWERMERS SMART INDUSTRIES, INC. |
|
A Delaware corporation |
|
|
|
By: |
/s/ Christopher Thorne |
|
Name: |
Christopher Thorne |
|
Title: |
Chief Executive Officer |
[Signature
Page to Merger Agreement]
EXHIBIT A
NOTE PURCHASE AGREEMENT
(Attached)
EXHIBIT B
SPONSOR SUPPORT AGREEMENT
(Attached)
EXHIBIT C
COMPANY STOCKHOLDERS SUPPORT AGREEMENT
(Attached)
EXHIBIT D
INSIDER SUBSCRIPTION AGREEMENTS
(Attached)
EXHIBIT E
PRO FORMA CAPITALIZATION
[Intentionally Omitted]
Exhibit 10.1
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement,
dated as of December 21, 2023, (this “Agreement”) is entered into by and among Powermers Smart Industries, Inc., a
Delaware corporation (the “Company”), and Antara Total Return SPAC Master Fund LP, a Cayman Islands exempted limited
partnership (the “Investor”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed
to such terms in the Business Combination Agreement (as defined below).
WHEREAS, concurrently with
the execution of this Agreement, OCA Acquisition Corp., a Delaware corporation (the “SPAC”), POWR Merger Sub, LLC,
a Delaware limited liability company (“Merger Sub”), and the Company are entering into a business combination agreement
(the “Business Combination Agreement” and the transactions contemplated therein, the “Business Combination”);
WHEREAS, the Company proposes
to issue and sell to the Investor, and the Investor proposes to purchase from the Company, on the terms and subject to the conditions
set forth in this Agreement (such transaction, the “Sale”), convertible promissory notes with an aggregate principal
amount of $8,000,000 (the “Authorized Principal Amount”), in substantially the form attached hereto as Exhibit A
(each, a “Note” and collectively, the “Notes”);
WHEREAS, the Notes shall automatically
convert into shares of common stock, par value $0.01 per share, of the Company (the “Company Common Stock” and the
Company Common Stock and the Notes, collectively, the “Securities”) in certain situations, including in connection
with the closing of the Business Combination, following the Stock Split and immediately prior to the Merger (the “BCA Closing”);
and
WHEREAS, the Notes are being
offered and sold to the Investor, on the terms and subject to the conditions set forth in this Agreement, without registration under the
Securities Act of 1933, as amended (the “Securities Act”), in reliance on an exemption from the registration requirements
under the Securities Act.
NOW THEREFORE, in consideration
of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The
Notes.
(a) Issuance
of Notes. The sale and purchase of the Notes shall take place at two Closings (as defined below). At each Closing, the Company will
issue and sell to the Investor, and, subject to all of the terms and conditions hereof, the Investor will purchase the Notes, as the case
may be, in the principal amount set forth opposite the Investor’s name on Schedule I and Schedule II hereto (each
such principal amount, a “Purchase Price”).
(b) Closing.
(i) Sale
and Purchase of Notes to Investor. Subject to the terms and conditions of this Agreement, at each Closing the Company hereby agrees
to issue and sell to the Investor, and the Investor agrees to purchase from the Company, such Notes at such Purchase Price as set forth
on Schedule I or Schedule II, as applicable.
(ii) Initial
Closing. The closing of the sale, purchase and issuance of the Notes with an aggregate principal amount of $3,000,000 under this Agreement
(the “Initial Closing”) shall be held remotely, concurrently with the execution of the Business Combination Agreement,
or at such time and place upon which the parties shall agree in writing (such date is hereinafter referred to as the “Initial
Closing Date”).
(iii) Milestone
Closing. Within ten (10) business days of the receipt by the Company of initial comments from the SEC related to the filing of the
Registration Statement (the “Milestone Completion Date”), the Company shall sell and issue, and the Investor shall
purchase, at a subsequent closing (the “Milestone Closing”, and along with the Initial Closing, a “Closing”),
an additional aggregate principal amount of $5,000,000 of Notes to the Investor as set forth on Schedule II hereto. Any such sale
and issuance of Notes in the Milestone Closing shall be on the same terms and conditions as those contained herein. The Milestone Closing
shall take place at such date, time and place as shall be approved by the Company and the Investor (but in no event shall be more than
ten business days following the Milestone Completion Date) (such date is hereinafter referred to as the “Milestone Closing Date”,
and along with the Initial Closing Date, a “Closing Date”).
(iv) Delivery.
At each Closing, subject to the terms and conditions of this Agreement, the Company will deliver to the Investor an executed Note in the
name of the Investor in the principal amount purchased at such Closing by the Investor, against payment of the Purchase Price therefor
by wire transfer pursuant to the instructions set forth on Schedule III hereto or subsequently provided in writing by the Company.
2. Representations
and Warranties of the Company. The Company hereby represents and warrants to the Investor and acknowledges and agrees with the
Investor as follows as of each Closing Date:
(a) The
Company has been duly incorporated, is validly existing as a corporation and is in good standing under the Laws of the State of Delaware
and has the corporate power and authority to own, operate and lease its properties, rights and assets and to conduct its business as it
is now being conducted. The Company is duly licensed, registered or qualified and in good standing (or the equivalent thereof) as a foreign
entity in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so
licensed, registered or qualified, except where failure to be so licensed, registered or qualified would not reasonably be expected, individually
or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole.
(b) The
Company has the requisite corporate power and authority to execute and deliver this Agreement and the Notes (together, the “Note
Documents”), to issue and sell the Notes and the underlying shares of Company Common Stock issuable upon conversion thereof,
and to carry out the provisions of the Note Documents and the Company’s Certificate of Incorporation and to carry on its business
as presently conducted and as presently proposed to be conducted. The execution, delivery and performance of the Note Documents and the
consummation of the transactions contemplated thereby have been duly authorized by the board of directors of the Company, and no other
corporate proceeding on the part of the Company is necessary to authorize the Note Documents or the Company’s performance thereunder.
The Note Documents have been or will be, as applicable, duly and validly executed and delivered by the Company and, assuming due and valid
authorization, execution and delivery by the Investor, the Note Documents constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general principles
of equity, whether such enforceability is considered in a proceeding in equity or at Law.
(c) The
Note Documents, the performance of the Company’s obligations thereunder or the consummation of the transactions contemplated thereby
shall not, directly or indirectly (with or without due notice or lapse of time or both), (a) contravene or conflict with the certificate
of incorporation or bylaws of the Company or its Subsidiaries, (b) contravene or conflict with or constitute a violation of any provision
of any Data Protection Requirement or any Law, Permit or Governmental Order binding upon or applicable to the Company or any of its Subsidiaries
or any of their respective assets or properties, (c) violate, conflict with, result in a breach of any provision of or the loss of any
benefit under, constitute a default under, or result in the termination or acceleration of, or a right of termination, cancellation, modification,
acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Specified Contract
or Real Property Lease or (d) result in the creation or imposition of any Lien on any asset, property or Equity Security of the Company
or any of its Subsidiaries (other than any Permitted Liens) or result in a violation of, a termination (or right of termination) or cancellation
of, or default under, or the creation or acceleration of any obligation or the loss or reduction of a benefit under, any provision of,
any Specified Contract or Real Property Lease, except in the case of each of clauses (b) through (d) for such violations, contraventions,
conflicts, creations, impositions, violations, terminations, breaches or defaults reasonably be expected, individually or in the aggregate,
to be material to the Company and its Subsidiaries, taken as a whole.
(d) No
action by, notice, consent, approval, waiver or authorization of, or designation, declaration or filing with, any Governmental Authority
is required on the part of the Company with respect to the execution, delivery or performance by the Company of its obligations under
this Agreement or the consummation of the transactions contemplated hereby.
(e) No
broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other similar
fee, commission or other similar payment in connection with the transactions contemplated hereby based upon arrangements made by the Company
for which any Investor or any of its respective affiliates may become liable.
(f) Subject
in part to the truth and accuracy of each of the Investor’s representations and warranties set forth in Section 3 of this Agreement,
it is not necessary in connection with the issuance of the Notes to the Investor in the manner contemplated by this Agreement, to register
the issuance of the Notes under the Securities Act. None of the Company, any of its subsidiaries, any of its affiliates or any person
acting on its behalf directly or indirectly, has offered, sold or solicited any offer to buy and will not, directly or indirectly, offer,
sell or solicit any offer to buy, any security of a type or in a manner which would be integrated with the issuance of the Notes and require
the issuance of the Notes to be registered under the Securities Act.
(g) Subject
in part to the truth and accuracy of the Investor’s representations and warranties set forth in Section 3 of this Agreement, the
offer, sale and issuance of the shares of Company Common Stock as contemplated by this Agreement are exempt from the registration requirements
of the Securities Act and will not result in a violation of the qualification or registration requirements of any applicable state or
foreign securities laws, and none of the Company, any of its subsidiaries, any of its affiliates or any authorized agent acting on its
behalf will take any action hereafter that would cause the loss of such exemption.
(h) The
shares of Company Common Stock issuable by the Company upon conversion of the Notes have been duly authorized and validly reserved for
issuance, and when issued, sold and delivered in accordance with the terms of the Notes, will be duly authorized and validly issued, fully
paid and nonassessable.
(i) To
the Company’s knowledge, no Company Covered Person (as defined herein) is subject to any of the “bad actor” disqualifications
described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification
Events”). The Company has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities
Act. “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however,
that Company Covered Persons do not include (i) the Investor, or (ii) any person or entity that is deemed to be an affiliated issuer of
the Company solely as a result of the relationship between such person or entity and any Investor.
(j) The
Company shall use the proceeds of the Notes (i) solely for working capital purposes for the operation of its business and (ii) in compliance
with all applicable laws.
(k) The
Company agrees that the Investor may rely upon the representations and warranties made by the Company to the SPAC in Article IV of the
Business Combination Agreement, which representations and warranties shall be subject to the limitations set out in the Business Combination
Agreement and shall also be qualified by disclosures contained in the disclosure schedules to the Business Combination Agreement.
(l) Except
for the representations and warranties made by the Company that are contained in this Section 2 and in Article IV of the Business Combination
Agreement, none of the Company, any of its subsidiaries, or any of its respective officers, directors, employees, stockholders, affiliates,
agents, advisors or other representatives, or any other person or entity acting on behalf of it, or any other party to the Business Combination
Agreement, makes any representations or warranties, express or implied, and the Company hereby expressly disclaims any other representations
or warranties made with respect to it or its respective subsidiaries or affiliates, the Notes, the Company Common Stock, this Agreement
or the transactions contemplated hereby.
3. Representations
and Warranties of the Investor. The Investor represents and warrants to the Company as follows as of each Closing Date:
(a) The
Investor is an exempted company, corporation, limited liability company or other applicable business entity duly organized, incorporated
or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect
to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the laws of its jurisdiction of organization,
incorporation or formation (as applicable).
(b) The
Investor has the requisite exempted company, corporate, limited liability company or other similar power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all necessary exempted company, corporate, limited liability company
or other similar action on the part of the Investor. This Agreement has been duly and validly executed and delivered by the Investor and
constitutes the valid, legal and binding agreement of the Investor (assuming this Agreement has been, upon execution hereof, duly authorized,
executed and delivered by the other parties), enforceable against the Investor in accordance with its terms subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting or relating to creditors’ rights generally
and subject, as to enforceability, to general principles of equity, whether such enforceability is considered in a proceeding in equity
or at Law.
(c) The
execution and delivery of this Agreement by the Investor does not, and the performance by the Investor of its obligations hereunder will
not (i) to the Investor’s knowledge, violate any provision of, or result in the breach of, any law to which the Investor is subject
or by which any property or asset of the Investor is bound, (ii) conflict with or result in a violation of the governing documents of
the Investor, or (iii) violate any provision of or result in breach, default or acceleration under any contract binding upon the Investor
or to the Investor’s knowledge require any consent or approval that has not been given or other action that has not been taken by
any person, except in the case of clause (i) or (iii) directly above, as would not reasonably be expected to prevent, enjoin or materially
delay the performance by the Investor of its obligations under this Agreement.
(d) No
consent, notice, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the
part of the Investor with respect to the Investor’s execution, delivery or performance of this Agreement and the consummation of
the transactions contemplated hereby, except for filings, notices and reports pursuant to, in compliance with or required to be made under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(e) As
of the date hereof, there are no Actions pending against the Investor, or to the knowledge of the Investor, threatened against the Investor,
before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which in any manner
challenges or seeks to prevent, enjoin or materially delay the performance by the Investor of its obligations under this Agreement.
(f) No
broker, finder, investment banker or other similar person is entitled to any brokerage fee, finders’ fee or other similar commission
in connection with the transactions contemplated hereby based upon arrangements made by the Investor for which the Company or any of its
affiliates may become liable.
(g) The Investor has received
such information as the Investor deems necessary in order to make an investment decision with respect to the Notes and to enter into
this Agreement. Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information
provided by the Company or any other party to the Business Combination Agreement in making its decision to enter into, deliver and perform
its obligations under this Agreement. The Investor further acknowledges that that there have been no representations, warranties, covenants
or agreements made to Investor by the Company, any other party to the Business Combination Agreement, or any of their respective officers,
directors, shareholders, representatives or managers, expressly or by implication, other than those representations, warranties, covenants
and agreements expressly set forth in this Agreement. The Investor acknowledges that the agreements contained herein with respect to
the Notes are irrevocable.
(h) The
Investor (i) is an “accredited investor” as defined in Rule 501(a) under the Securities Act, (ii) is purchasing the Notes
for its own account or for one or more separate accounts maintained by it for the benefit of one or more other accredited Investor and
not with a view to the distribution thereof, provided that the disposition of the Investor’s property shall at all times be within
the Investor’s control, (iii) has no present intention of selling, granting any participation in, or otherwise distributing the
Securities in violation of law and does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer
or grant participations to such person or to any third person with respect to the Securities, (iv) understands that (a) the Securities
are, or will be, “restricted securities” under applicable U.S. federal state securities laws and that, pursuant to these laws,
the Securities have not been registered under the Securities Act and must be held indefinitely unless they are registered pursuant to
the provisions of the Securities Act or if an exemption from registration is available and (b) no public market exists for the Securities
and that the Company has not made any assurance that a public market will ever exist for the Securities, (v) will not sell, transfer or
otherwise dispose of the Securities except in compliance with the terms of this Agreement and the registration requirements of the Securities
Act and any other applicable securities laws or pursuant to an applicable exemption therefrom, (vi) acknowledges that the Company has
no obligation to register or qualify the Securities for resale other than as described herein, (vii) is knowledgeable with respect to
the Company and its subsidiaries and their respective conditions (financial and otherwise), results of operations, businesses, properties,
assets, liabilities, plans, management, financing and prospects, (viii) has such knowledge and experience in financial and business matters
and in investments of this type that it is capable of evaluating the merits and risks of its investment in the Securities, and of making
an informed investment decision and has so evaluated the merits and risks of such investment and without reliance upon the Company, its
subsidiaries or affiliates or any other person (except for the Company’s representations and warranties and statements set forth
in this Agreement) made its own analysis and decision to consummate the Sale, (ix) recognizes that an investment in the Securities involves
a high degree of risk, including a risk of total loss of the Investor’s investment, and is able to bear the economic risk of an
investment in the Securities, including holding them for an indefinite period, and is able to afford a complete loss of such investment,
(x) was given the opportunity to ask questions and receive answers concerning the terms and conditions of the Sale and to obtain any additional
information which the Company possesses or can acquire without unreasonable effort or expense, including with respect to the Company and
its subsidiaries’ conditions (financial and otherwise), results of operations, businesses, properties, assets, liabilities, plans,
management, financing and prospects, and the Company and its representatives have answered to the satisfaction of the Investor all inquiries
that the Investor has put to the Company, and (x) acknowledges that it was afforded the opportunity to conduct due diligence on the Company
and its subsidiaries prior to execution of this Agreement.
(i) Neither
the Investor, nor any person acting on its behalf, (i) has engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Notes or (ii) has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under any circumstances that would require registration
of the Notes under the Securities Act.
(j) The
Investor understands that nothing in this Agreement or any other materials presented to the Investor in connection with the Sale constitutes
legal, tax or investment advice. The Investor has consulted such legal, tax, accounting and investment advisors as it, in its sole discretion,
has deemed to be necessary or appropriate in connection with its purchase of the Notes, and it relies solely on such advisors and not
on any statements or representations of the Company or other parties to the Business Combination Agreement, or any of their respective
agents or representatives with respect to such legal, tax, accounting and investment consequences (except for the Company’s representations
and warranties and statements set forth in this Agreement and in Article IV of the Business Combination Agreement).
(k) As
of the date of this Agreement, (i) the Investor is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), and (ii) the Investor’s acquisition and holding of the Notes will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended,
or any applicable similar law, to the extent such laws are applicable to the Investor.
(l) The
Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S.
Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President
of the United States and administered by OFAC (“OFAC List”), or otherwise currently the subject or target of any sanctions
administered by the OFAC, the U.S. Department of State or other applicable governmental entity, (ii) owned or controlled by, or acting
on behalf of, a person that is named on the OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a
citizen, national or the government, including any political subdivision, agency or instrumentality thereof, of, Cuba, Iran, North Korea,
Syria, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and
the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine or any other country or territory embargoed or
subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations,
31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees
to use reasonable best efforts to provide law enforcement agencies, if requested thereby, such records as required by applicable law,
provided that the Investor is permitted to do so under applicable law.
(m) The
Investor has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe
for the Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction for the purchase of the
Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need
to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the Securities. The Investor’s subscription and payment for and continued beneficial ownership of the Securities
will not violate any applicable securities or other laws of the Investor’s jurisdiction.
(n) The
Investor is not subject to any Disqualification Event.
4. Conditions
to Closing of the Investor. The Investor’s obligation to purchase the Notes at a Closing is subject to the satisfaction,
at or prior to such Closing, of the following conditions:
(a) Representations
and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when
made (except for those representations and warranties made as of a specific date as to which they are true and correct as of such date),
and shall be true and correct in all respects, or with respect to those representations and warranties that do not contain any materiality
qualifier in all material respects, on the Closing Date.
(b) Covenants.
The Company shall have performed all obligations and conditions required to be performed or observed by it on or prior to the Closing
Date.
(c) Closing
Certificate. The Company shall have duly executed and delivered to the Investor a certificate from the Company in form and substance
reasonably satisfactory to the Investor, validly executed by the Chief Executive Officer or Chief Financial Officer of the Company for
and on behalf of the Company, certifying as to the matters set for in Section 4(a) and Section 4(b).
(d) Governmental
Approvals and Filings. Except for any notices required or permitted to be filed after such Closing with certain federal and state
securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance
of the Notes.
(e) Legal
Requirements. At such Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Notes shall be legally
permitted by all laws and regulations to which the Investor or the Company are subject.
(f) Proceedings
and Documents. All corporate and other proceedings in connection with the transactions contemplated at such Closing and all documents
and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investor.
(g) Material
Adverse Effect. There shall have been no circumstance, effect, change, event or development that, individually or in the aggregate,
has had, has or would reasonably be expected to have a Company Material Adverse Effect.
(h) Note
Documents. The Company shall have duly executed and delivered to the Investor, and filed with the appropriate governmental authority,
as applicable, the following Note Documents:
(i) This
Agreement; and
(ii) Each
Note issued hereunder at such Closing;
5. Conditions
to Obligations of the Company. The Company’s obligation to issue and sell the Notes to the Investor at a Closing is subject
to the satisfaction, on or prior to such Closing, of the following conditions:
(a) Representations
and Warranties. The representations and warranties made by the Investor in Section 3 hereof shall have been true and correct
when made (except for those representations and warranties made as of a specific date as to which they are true and correct as of such
date), and shall be true and correct in all respects, or with respect to those representations and warranties that do not contain any
materiality qualifier in all material respects, on the Closing Date.
(b) Governmental
Approvals and Filings. Except for any notices required or permitted to be filed after such Closing with certain federal and state
securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance
of the Notes.
(c) Legal
Requirements. At such Closing, the sale and issuance by the Company, and the purchase by the Investor, of the Notes shall be legally
permitted by all laws and regulations to which the Investor or the Company are subject.
(d) Purchase
Price. The Investor shall have delivered to the Company the Purchase Price in respect of the Notes being purchased by the Investor
referenced in Section 1 hereof.
6. Covenants.
(a) The
book-entry interests representing the Notes or the Company Common Stock will bear the legends set forth below, as applicable:
(i) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT
UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.”
(ii) Any
legend set forth in, or required by, the Business Combination Agreement or an ancillary agreement thereto.
(iii) Any
legend required by the securities laws of any state to the extent such laws are applicable.
(b) Upon
conversion of the Notes, the Company shall issue the shares of Company Common Stock to the Investor in book-entry form and shall make
appropriate notation on the books and records of the Company with respect thereto.
(c) Upon
issuance, the Company Common Stock will have been duly authorized, validly issued, fully paid and nonassessable, and shall be free and
clear of any and all liens, except for restrictions imposed by applicable securities laws.
(d) The
Company shall cooperate with holders of shares of Company Common Stock to cause the removal of all restrictive legends from any shares
of Company Common Stock being properly sold under the Registration Statement or pursuant to Rule 144 under the Securities Act within two
(2) business days of a holder’s request and cause its legal counsel to deliver the necessary legal opinions, if any, to the Company’s
transfer agent in connection with the instruction to remove the restrictive legends upon the receipt of such supporting documentation,
if any, as reasonably requested by such counsel.
(e) The
Company shall take all corporate action necessary to reserve for future issuance, and shall maintain such reservation prior to the conversion
of the Notes, for a sufficient number of shares of Company Common Stock for delivery or issuance.
(f) Other
than draws under the Company’s and its Subsidiaries’ credit facilities, and other than in the ordinary course of business
and consistent with past practices, the Company shall not, and shall cause its Subsidiaries not to, incur, create or assume any material
Indebtedness in excess of $2,500,000 without the prior written consent of the Investor.
(g) At
the closing of the Business Combination, Company Common Stock shall be approved for listing on the New York Stock Exchange, New York Stock
Exchange American, Nasdaq Stock Market or any other national securities exchange.
(h) The
Company Common Stock shall be included as “Registrable Securities” as such term is defined under that certain Registration
Rights Agreement contemplated by the Business Combination Agreement, and the Investor (and its permitted transferees under Section 8(e)
of this Agreement) shall be a party to such Registration Rights Agreement.
7. Termination.
This Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder
shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (i) repayment
of the principal balance of the Note, including any accrued and unpaid interest, in full and the disposition by the Investor of the Company
Common Stock, (ii) the mutual written agreement of each of the parties hereto to terminate this Agreement, (iii) by the Investor (x) upon
the failure of the Company to perform or comply in all material respects with any of its covenants or agreements contained in this Agreement
which are to be performed or complied with by the Company, or (y) if any representation or warranty of the Company contained in this Agreement
shall not be true and correct in all material respects; provided, that nothing herein will relieve any party from liability for any willful
breach hereof prior to the time of termination, or fraud, and each party will be entitled to any remedies at law or in equity to recover
losses, liabilities or damages arising from such breach; however the obligation of the Company to repay the outstanding principal balance
of the Note plus accrued and unpaid interest thereon shall survive in the case of the termination of this Agreement pursuant to clause
(ii) or (iii) of this sentence. Notwithstanding anything to the contrary herein, the provisions of this Section 7 shall survive the termination
of this Agreement.
8. Miscellaneous.
(a) Further
Assurances. The parties hereto shall execute and deliver such additional documents and take such additional actions as the parties
reasonably may deem to be practical and necessary in order to consummate the transactions contemplated by this Agreement.
(i) The
Investor acknowledges that the Company, will rely on the acknowledgments, understandings, agreements, representations and warranties contained
in this Agreement. Prior to each Closing, the Investor agrees to promptly notify the Company if any of the acknowledgments, understandings,
agreements, representations and warranties set forth herein are no longer accurate (subject to any qualification as to materiality applicable
thereto).
(ii) Each
of the Investor and the Company is entitled to rely upon this Agreement and is irrevocably authorized to produce this Agreement or a copy
hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(iii) The
Investor shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate
the transactions contemplated by this Agreement on the terms and conditions described herein
(b) Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed
to have been duly given) by delivery in person, by email (having obtained electronic delivery confirmation thereof (i.e., an electronic
record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that
such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested)
(upon receipt thereof) to the other parties as follows:
(i) If
to the Company:
Ares (USA) Smart Industries
Inc.
1500 Broadway, Suite
3300A
New York, New York
10036
Attention: Chris Thorne
Email: [***]
with a copy (which
shall not constitute notice) to:
Graubard Miller
405 Lexington Avenue,
44th Floor
New York, New York
10174
Attention: David A.
Miller; Jeffrey M. Gallant
Email:
[***], [***]
(ii) If
to the Investor, to such address or addresses set forth on the applicable signature page hereto; or
(iii) to
such other address or addresses as the parties may from time to time designate in writing. Without limiting the foregoing, any party may
give any notice or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service,
ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until
it actually is received by the party for whom it is intended.
(c) Entire
Agreement. The Note Documents constitute the entire agreement, and supersedes all other prior agreements, understandings, representations
and warranties, both written and oral, among the parties, with respect to the subject matter hereof, including any commitment letter(s)
entered into relating to the subject matter hereof.
(d) Modifications
and Amendments. This Agreement may not be amended, modified, supplemented or waived except by an instrument in writing, signed by
the parties hereto.
(e) Assignment.
The Investor may assign its rights under this Agreement to any transferee in connection with a transfer permitted under the Notes.
(f) Benefit.
Except as otherwise provided herein, this Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs,
executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties,
covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators,
successors, legal representatives and permitted assigns. This Agreement shall not confer rights or remedies upon any person other than
the parties hereto and their respective successors and assigns.
(g) Governing
Law. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of
or relate to this Agreement, the negotiation, execution or performance of this Agreement (including any claim or cause of action based
upon, arising out of, or relating to, any representation or warranty made in or in connection with this Agreement or as an inducement
to enter into this Agreement) or any of the transactions contemplated hereby or any of the transactions contemplated thereby, shall be
governed by, and enforced in accordance with, the internal laws of the State of Delaware, including its statutes of limitations, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the law of any jurisdiction other than the State of Delaware.
(h) Submission to
Jurisdiction. Any proceeding based upon, arising out of, or relating to (i) this Agreement or (ii) in any way connected with or related
or incidental to the dealings of the parties in respect of this Agreement or any of the transactions contemplated hereby or any of the
transactions contemplated thereby, must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does
not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the
United States District Court for the District of Delaware, and each of the parties irrevocably (a) submits to the exclusive jurisdiction
of each such court n any such proceeding, (b) waives any objection it may now or hereafter have to personal jurisdiction, venue or to
convenience of forum in such courts, (c) agrees that all claims in respect of the proceeding shall be heard and determined only in any
such court and (d) agrees not to bring any proceeding based upon, arising out of or relating to, this Agreement or any of the transactions
contemplated hereby or any of the transactions contemplated thereby in any other court. Nothing herein contained shall be deemed to affect
the right of any party to serve process in any manner permitted by law or to commence proceedings or otherwise proceed against any other
party in any other jurisdiction, in each case, to enforce judgments obtained in any proceeding brought pursuant to this Section 8(h).
(i) MUTUAL
WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
PROCEEDING OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR RELATING TO, (I) THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR
OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, PROCEEDING OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE
OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(i).
(j) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable law, all other
provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision of this
Agreement is invalid, illegal or unenforceable under applicable law, the parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent possible.
(k) No
Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single
or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps
to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle
the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver
of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
(l) Survival.
All representations and warranties made by the parties hereto in this Agreement shall survive each Closing.
(m) Headings
and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall
in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
(n) Counterparts.
This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other parties, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by email transmission or any other form of
electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such signature page were an original thereof.
(o) Construction.
The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.”
Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will
be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,”
“hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant
contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained
herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless
of the relative levels of specificity) which such party has not breached will not detract from or mitigate the fact that such party is
in breach of the first representation, warranty, or covenant.
(p) Mutual
Drafting. This Agreement is the joint product of the parties hereto and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of the parties hereto and shall not be construed for or against any party.
(q) No
Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship between the Investor, on the
one hand, and the Company, on the other hand, and is not intended to create, and does not create, any agency, partnership, joint venture
or any like relationship between the parties.
(r) No
Recourse. Notwithstanding anything to the contrary contained herein or otherwise, this Agreement may only be enforced against, and
any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance
of this Agreement or the transactions contemplated hereby, may only be made against the entities and persons that are expressly identified
as parties to this Agreement in their capacities as such and no former, current or future shareholders, equity holders, controlling persons,
directors, officers, employees, general or limited partners, members, managers, agents or affiliates of any party hereto, or any former,
current or future direct or indirect shareholder, equity holder, controlling person, director, officer, employee, general or limited partner,
member, manager, agent or affiliate of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability
for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on,
in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made
in connection herewith. Without limiting the rights of any party against the other parties hereto, in no event shall any party or any
of its affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary
damages from, any Non-Recourse Party.
(s) Expenses.
Each party shall bear its own expenses in connection with the negotiation and drafting of this Agreement and transactions contemplated
hereby.
(t) Currency.
All currency amounts set forth in this Agreement are in U.S. Dollars.
(u) Confidentiality.
This Agreement is to be kept strictly confidential and none of the Company or the Investor may disclose the existence or the terms hereof
to any person without the consent of the other party, other than (a) as required by Law (including any public disclosure in connection
with the Business Combination), (b) to each party’s officers, directors, employees, accountants, attorneys, and other advisors,
(c) to any equity holder of the Company, (d) to any current or potential financing source of the Company or any potential acquirer, directly
or indirectly, of an equity interest in the Company, and, in the case of the foregoing clauses (c) and (d), only if the recipient thereof
is subject to confidentiality obligations in respect thereof, or (e) to the parties to the Business Combination Agreement and their respective
officers, directors, employees, accountants, attorneys and other advisors.
(Signature
Page Follows)
The parties have caused this
Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.
|
COMPANY: |
|
|
|
POWERMERS SMART INDUSTRIES, INC. |
|
|
|
By: |
/s/ Christopher Thorne |
|
Name: |
Christopher Thorne |
|
Title: |
Chief Executive Officer |
[Signature Page to Note
Purchase Agreement]
The parties have caused this
Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.
|
INVESTOR: |
|
|
|
ANTARA CAPITAL TOTAL RETURN SPAC MASTER FUND LP |
|
|
|
by Antara Capital Total Return SPAC Master Fund GP LLC, its general partner |
|
|
|
By: |
/s/ Himanshu Gulati |
|
Name: |
Himanshu Gulati |
|
Title: |
Managing Member |
|
|
|
Address: |
|
Antara Capital Total Return SPAC Master Fund LP |
|
55 Hudson Yard, 47th Floor, Suite C |
|
New York, NY 10001 |
[Signature Page to Note Purchase Agreement]
Schedule I
INITIAL CLOSING DATE SCHEDULE
OF INVESTOR
Investor | |
Principal Amount /
Purchase Price | |
Antara Capital Total Return SPAC Master Fund LP | |
$ | 3,000,000 | |
Total | |
$ | 3,000,000 | |
Schedule II
MILESTONE CLOSING DATE SCHEDULE
OF INVESTOR
Investor | |
Principal Amount /
Purchase Price | |
Antara Capital Total Return SPAC Master Fund LP | |
$ | 5,000,000 | |
Total | |
$ | 5,000,000 | |
Exhibit A
FORM OF CONVERTIBLE PROMISSORY
NOTE
THIS CONVERTIBLE PROMISSORY
NOTE (“NOTE”) AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THIS NOTE AND THE SECURITIES ISSUABLE UPON
CONVERSION HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF
THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER
THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS NOTE IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. FOR INFORMATION REGARDING THE ISSUE PRICE, THE TOTAL AMOUNT OF
ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, AND THE YIELD TO MATURITY OF THIS NOTE, PLEASE CONTACT CHRIS THORNE, CHIEF EXECUTIVE OFFICER,
1500 BROADWAY, SUITE 3300A, NEW YORK, NEW YORK 10036.
CONVERTIBLE
PROMISSORY NOTE
Principal Amount: [●] |
Dated as of [●], [2023] |
Powermers Smart Industries,
Inc., a Delaware corporation (the “Maker”), promises to pay to the order of Antara Capital Total Return SPAC Master
Fund LP, a Cayman Islands limited partnership, or its registered assigns or successors in interest (the “Payee”), the
principal sum of $[●] in lawful money of the United States of America, on the terms and conditions described below. All payments
on this Note shall be made by check or wire transfer of immediately available funds.
Prior to the issuance of this
Note, among other things, the Maker and the Payee entered into a Note Purchase Agreement (the “Note Purchase Agreement”).
Capitalized terms used herein
without definition shall have the meanings given to such terms in the Note Purchase Agreement unless otherwise specified.
2. Principal.
The Outstanding Amount (as defined below) shall be automatically due and payable in full on the earliest to occur of (i) the second
anniversary of the termination of the Business Combination Agreement, (ii) following the termination of the Business Combination Agreement,
a Public Offering, and (iii) following the termination of the Business Combination Agreement, the Maker’s receipt of greater than
or equal to $15,000,000 in connection with the issuance of any debt and/or equity securities of the Maker (the “Maturity Date”).
All amounts owed at the Maturity Date shall be repaid in a mutually agreed upon schedule based on available free-cash of the Maker. As
used herein, “Public Offering” means (a) the closing of the Maker’s first firm commitment underwritten initial
public offering of Company Common Stock pursuant to an effective registration statement filed under the Securities Act, covering the offer
and sale of Company Common Stock that results in the listing of the shares of Company Common Stock on the New York Stock Exchange, New
York Stock Exchange American or the Nasdaq Stock Market, (b) a transaction pursuant to which the Maker (and potentially one or more other
companies) combines with a special purpose acquisition vehicle (other than the SPAC) and where the surviving or resulting entity will
be a publicly-traded company with common stock traded on the New York Stock Exchange, New York Stock Exchange American or the Nasdaq Stock
Market, or (c) the Maker’s initial listing of Company Common Stock (other than shares of Company Common Stock not eligible for resale
under Rule 144 under the Securities Act) on the New York Stock Exchange, New York Stock Exchange American or the Nasdaq Stock Market by
means of an effective registration statement filed by the Maker with the SEC that registers shares of Company Common Stock for resale,
as approved by the Maker’s board of directors.
3. Interest.
Interest shall accrue on the unpaid principal balance of this Note, together with any interest accrued but unpaid thereon (such principal
amount and interest, the “Outstanding Amount”), at an annual rate equal to 5% per annum, computed on the basis of the
actual number of days elapsed and a year of 365 days from the date of this Note until the Outstanding Amount is paid (or this Note is
converted, as provided in Section 4); provided, however, that if the Business Combination Agreement is terminated under Section
10.01(e) thereof, interest shall accrue at the rate of 10% per annum thereafter. Interest shall accrue daily and be paid on the Maturity
Date. Any accrued interest, which for any reason has not theretofore been paid, shall be paid in full on the date on which the final principal
payment on this Note is made.
4. Application
of Payments. All payments shall be applied solely to the reduction of the unpaid Outstanding Amount of this Note. This Note may not
be prepaid without the consent of the Payee.
5. Conversion.
(a) Conversion
Mechanics. In connection with the closing of the Business Combination, following the Stock Split and immediately prior to the effective
time of the Merger (as defined in the Business Combination Agreement), the Outstanding Amount shall automatically convert into [●]
shares of Company Common Stock.
(b) Effect
of Conversion. In the event that this Note is converted pursuant to Section 4(a) of this Note, the Payee shall surrender this
Note, duly endorsed, to the Maker, and this Note shall thereupon be canceled (subject to fulfillment of all of the Maker’s obligations
under the Note Purchase Agreement or in any other agreement between the Maker and the Payee).
6. Events
of Default. The following shall constitute an event of default (“Event of Default”):
(a) Failure
to Make Required Payments. Failure by the Maker to pay any amount due pursuant to this Note within five (5) business days of the applicable
Maturity Date.
(b) Breaches
of Covenants. The failure by the Maker to observe, keep or perform any other covenant, obligation, condition or agreement contained
in the Note Purchase Agreement, with such failure continuing for thirty (30) days after the earlier of (i) the Payee’s receipt of
written notice to the Payee of such failure or (ii) the Maker’s receipt of written notice of the Payee’s actual knowledge
of such failure.
(c) Breaches
of Representations and Warranties. Failure of any of the representations and warranties of the Maker under the Note Purchase Agreement
to be true and correct in all material respects as of the date of this Note or at any time thereafter.
(d) Other
Payment Obligations. As to Indebtedness (as defined in the Business Combination Agreement) for borrowed money of the Maker in an aggregate
amount in excess of $100,000 at any time: (i) the Maker or any of its subsidiaries shall fail to make any payment due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) on any such Indebtedness and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Indebtedness, (ii) any other default shall exist under
any agreement or instrument of the Maker or any of its subsidiaries related to any such Indebtedness, or any other event shall occur and
shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event
is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness, or (iii) any such Indebtedness shall be declared
to be due and payable or required to be prepaid (other than by a regularly scheduled required payment) prior to the stated maturity thereof.
(e) Judgements.
A final judgment or order shall be rendered against the Maker or any of its subsidiaries and such judgment or order shall remain unsatisfied
or undischarged and in effect for thirty (30) consecutive days without a stay of enforcement or execution or distress, enforcement power,
execution, charging order, garnishee order or other process shall be levied upon or enforced upon any part of the assets or property of
the Maker or any of its subsidiaries which is not paid out or discharged within 30 consecutive days; provided that this Section
5(e) shall not apply (i) to any judgment for which the Maker or any of its subsidiaries is fully insured (except for normal deductibles
in connection therewith) and with respect to which the insurer has assumed the defense and is not defending under reservation of right
and with respect to which the Maker or any of its subsidiaries reasonably believes the insurer will pay the full amount thereof (except
for normal deductibles in connection therewith) or (ii) to the extent that the aggregate amount of all such judgments and orders does
not exceed $250,000.
(f) Voluntary
Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation
or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, provisional liquidator,
examiner, interim examiner, process adviser, administrator, assignee, trustee, custodian, sequestrator (or other similar official) of
the Maker, or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the Maker
convening a meeting of, or proposing to enter into any arrangement or composition with or for the benefit of, its creditors, or the failure
of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any
of the foregoing including the passing of an effective resolution for the winding up of the Maker.
(g) Involuntary
Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker
in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, provisional
liquidator, examiner, interim examiner, process adviser, administrator, assignee, custodian, trustee, sequestrator (or similar official)
of the Maker, or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60 consecutive days.
7. Remedies.
(a) Upon
the occurrence of an Event of Default specified in Sections 5(a), 5(b) and 5(c) hereof, interest shall accrue at the rate of 15%
per annum on the Outstanding Amount until the entire Outstanding Amount is paid in full.
(b) Upon
the occurrence of an Event of Default specified in Sections 5(d), 5(e), 5(f) and 5(g), the Outstanding Amount, and all other sums
payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part
of the Payee.
(c) Upon
the occurrence of an Event of Default specified in Section 5 hereof, in addition to the remedies specified in Sections 6(a)
and 6(b) hereof, the Payee may take such proceedings and/or other action against the Maker to enforce its obligations under this Note
and under the Note Purchase Agreement.
(d) In
the event of an Event of Default hereunder, the Maker shall pay the Payee’s reasonable attorney’s fees in collecting under
and enforcing this Note.
8. Waivers.
The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor,
protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by the Payee
under the terms of this Note, and all benefits that might accrue to the Maker or any endorser or guarantor of, or surety for, this Note
by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of
any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process,
or extension of time for payment; and the Maker and all endorsers and guarantors of, and sureties for, this Note agree that any real
estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon
any such writ in whole or in part in any order desired by the Payee.
9. Unconditional
Liability. The Maker and all endorsers and guarantors of, and sureties for, this Note hereby waive all notices in connection with
the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal,
waiver or modification granted or consented to by the Payee, and consent to any and all extensions of time, renewals, waivers, or modifications
that may be granted by the Payee with respect to the payment or other provisions of this Note, and agree that additional makers, endorsers,
guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.
10. Notices.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed
to have been duly given) by delivery in person, by email (having obtained electronic delivery confirmation thereof (i.e., an electronic
record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that
such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested)
(upon receipt thereof) to the other parties as follows:
(i) If
to the Maker:
Powermers Smart Industries, Inc.
1500 Broadway, Suite 3300A
New York, New York 10036
Attention: Chris Thorne
Email: [***]
with a copy (which shall not constitute
notice) to:
Graubard Miller
405 Lexington Avenue, 44th Floor
New York, New York 10174
Attention: David A. Miller; Jeffrey M. Gallant
Email: [***]; [***]
(ii) If
to the Payee:
Antara Capital Total Return SPAC Master
Fund LP
55 Hudson Yard, 47th Floor,
Suite C
New York, NY 10001
with a copy (which shall
not constitute notice) to:
Kirkland & Ellis
LLP
601 Lexington Avenue
New York, NY 10022
Attention: Christian
O. Nagler, P.C.; Anthony J. Zangrillo
Email: [***]; [***]
or to such other address
or addresses as the parties may from time to time designate in writing. Without limiting the foregoing, any party may give any notice
or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, ordinary mail
or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is
received by the Party for whom it is intended.
11. Construction.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS THEREOF.
12. Severability.
Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13. Termination.
This Note shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder
shall terminate without any further liability on the part of any party in respect thereof, upon the repayment of the Outstanding Amount
in full.
14. Entire
Agreement. This Note constitutes the full and entire understanding and agreement between the parties with regard to the subject hereof;
provided, that, nothing herein is intended to supersede the Note Purchase Agreement or any documentation contemplated thereby, unless
so specified. In the event of any inconsistency between the statements in the body of this Note and the Note Purchase Agreement, the statements
in the body of the Note Purchase Agreement shall control.
15. Amendment;
Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and
the Payee.
16. Costs.
The Maker shall pay all documentary, stamp, transfer and other transactional taxes attributable to the issue to the Payee of this Note
and the issue of securities upon conversion or exchange of this Note, if any.
17. Assignment.
The holder of this Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Maker’s
office, and promptly thereafter and at the Maker’s expense, receive in exchange therefor one or more new Note(s), dated the date
of this Note and in the name of such person or persons as shall have been designated in writing by such holder or its attorney for the
Outstanding Amount. Upon receipt by the Maker of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction
or mutilation of any Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the
case of mutilation, upon surrender thereof, the Maker, at its expense, will execute and deliver in lieu thereof a new Note executed in
the same manner as this Note, in the same principal amount as the Outstanding Amount and dated the date to which interest shall have been
paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note. This Note may not be transferred, assigned
or delegated by the Maker without the prior written consent of the Payee. The Payee may assign this Note without the prior written consent
of the Maker to any of its affiliates, so long as the applicable assignee executes a joinder to this Note, in form and substance reasonably
satisfactory to the Maker, pursuant to which such assignee agrees to be bound by the terms hereof as though such assignee was the Payee.
This Note and all of the provisions hereof shall inure to the benefit of the parties hereto and their respective permitted successors
and assigns.
18. Ranking
of Indebtedness. The Maker and the Payee agree that this Note is a general unsecured obligation of the Maker ranking pari passu in
right of payment to any existing Indebtedness of the Maker.
19. Tax
Matters.
(a) In
each case for U.S. federal income tax and applicable state and local tax purposes, the Payee and the Maker agree to treat this Note (i)
as indebtedness of the Maker, (ii) not as a contingent payment debt instrument within the meaning of Treasury Regulations Section 1.1275-4
and (iii) any conversion of this Note to Company Common Stock as a transaction for which no gain or loss is realized pursuant to Internal
Revenue Service Revenue Ruling 72-265, and the Payee and the Maker shall take no contrary position on any tax return or before any taxing
authority unless otherwise required by a final determination within the meaning of Section 1313 of the Code or any corresponding provision
of state or local law.
(b) The
Maker shall make all payments to be made by it under this Note without any withholding or deduction for or on account of tax (a “Tax
Deduction”) unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made by the Maker, the Maker
shall (a) provide notice to the Payee as soon as reasonably practicable after such determination and at least five (5) business days prior
to the date the applicable payment is scheduled to be made and (b) cooperate with the Payee to reduce or eliminate any such deduction
or withholding to the extent permitted by applicable Law. The Payee shall provide the Maker an IRS Form W-9 or appropriate IRS Form W-8,
as applicable, on or before the first interest payment date hereunder.
20. Submission
to Jurisdiction. Each of the parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of
the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, any federal court within the
State of Delaware, and then, if such federal court declines to accept jurisdiction, any state or federal court within New York, New York),
for the purposes of any Action (as defined in the Note Purchase Agreement) (i) arising under this Note or (ii) in any way connected with
or related or incidental to the dealings of the parties in respect of this Note or any of the transactions contemplated hereby or any
of the transactions contemplated thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such
Action in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
such Action has been brought in an inconvenient forum. Each party hereby irrevocably and unconditionally waives, and agrees not to assert,
by way of motion or as a defense, counterclaim or otherwise, in any Action or cause thereof against such party (x) arising under this
Note or (y) in any way connected with or related or incidental to the dealings of the parties in respect of this Note or any of the transactions
contemplated hereby or any of the transactions contemplated thereby, (a) any claim that such party is not personally subject to the jurisdiction
of the courts as described in this Section 19 for any reason, (b) that such party or such party’s property is exempt or immune
from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment
prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (x) the Action or cause
thereof in any such court is brought against such party in an inconvenient forum, (y) the venue of such Action or cause thereof against
such party is improper; or (z) this Note, or the subject matter hereof, may not be enforced against such party in or by such courts. Each
party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set
forth on their signature pages hereto shall be effective service of process for any such Action, demand, or cause thereof.
21. Waiver
of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
PROCEEDING OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR RELATING TO, (I) THIS NOTE OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS
CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, PROCEEDING OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 20.
[Signature page follows]
IN WITNESS WHEREOF, the Maker, intending
to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
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POWERMERS SMART INDUSTRIES, INC. |
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By: |
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Name: |
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Title: |
Agreed and Acknowledged: |
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ANTARA CAPITAL TOTAL RETURN |
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SPAC MASTER FUND LP |
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by Antara Capital Total Return SPAC
Master Fund GP LLC, its general partner |
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By: |
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Name: |
Himanshu Gulati |
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Title: |
Managing Member |
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A-7
Exhibit 10.2
SUBSCRIPTION AGREEMENT
OCA Acquisition Corp.
1345 Avenue of the Americas, 33rd Floor
New York, New York 10105
Ladies and Gentlemen:
This Subscription Agreement
(this “Subscription Agreement”) is being entered into as of the date set forth on the signature page hereto, by and
among OCA Acquisition Corp., a Delaware corporation (“OCA”) and the undersigned investor (the “Investor”)
in connection with the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified
from time to time, the “Transaction Agreement”), by and among OCA, Powermers Smart Industries, Inc., a Delaware corporation
(the “Company”) and POWR Merger Sub, LLC, a Delaware limited liability company
and prior to the Closing Date, a wholly owned subsidiary of the Company (“Merger Sub”),
pursuant to which, among other things, on the Closing Date, Merger Sub will merge with and into OCA, with OCA being the surviving company
of such merger (the “Merger”) and wholly owned subsidiary of the Company, and each issued and outstanding share of
OCA Common Stock (as defined below) will be automatically cancelled, extinguished and converted into the right to receive one share of
common stock, par value $0.01 per share, of the Company (the “Company Common Stock”), on
the terms and subject to the conditions set forth in the Transaction Agreement (the “Transaction”).
In connection therewith, and
in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein,
and intending to be legally bound hereby, each of the Investor and OCA acknowledges and agrees as follows:
1. Subscription. The
Investor hereby irrevocably subscribes for and agrees to purchase from OCA, and OCA agrees to issue and sell to the Investor, 200,000
shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”),
in a private placement for a purchase price of $2,000,000.00 (the “Subscription Amount”), on the Closing Date,
immediately prior to the Merger, subject to the terms and subject to the conditions set forth in this Subscription Agreement.
2. Closing. The
closing of the sale, purchase and issuance of shares of Class A Common Stock
contemplated hereby (the “Closing”) is contingent upon the substantially
concurrent consummation of the Transaction but immediately prior to the Merger. The
Closing shall occur substantially concurrently with and be conditioned upon the effectiveness of the Transaction and immediately
prior to the Merger (the date the Closing so occurs, the “Closing Date”). Upon delivery of written notice from
(or on behalf of) OCA to the Investor (the “Closing Notice”) that OCA
reasonably expects all conditions to the closing of the Transaction to be satisfied or waived on a date that is not less than five
(5) business days from the date on which the Closing Notice is delivered to the Investor, the Investor shall deliver to OCA, three
(3) business days prior to the anticipated Closing Date specified in the Closing Notice, (i) the Subscription Amount by wire
transfer of United States dollars in immediately available funds to the account(s) specified by OCA in the Closing Notice (which
account shall not be an escrow account) and (ii) any other information that is reasonably requested in the Closing Notice in order
for shares of Class A Common Stock to be issued to the Investor, including, without
limitation, the legal name of the person in whose name such shares are to be issued and a duly executed Internal Revenue Service
Form W-9 or appropriate Form W-8, as applicable. On the Closing Date, OCA shall issue a number of shares of Class
A Common Stock to the Investor set forth on the signature page to this Subscription Agreement and subsequently cause such
shares of Class A Common Stock to be registered in book entry form, free and clear of
all liens (other than those arising under applicable securities laws and as provided for in the Merger Agreement), in the name of
the Investor on OCA’s share register; provided, however, that OCA’s obligation to issue shares of Class
A Common Stock to the Investor is contingent upon OCA having received the Subscription Amount in full in accordance with this
Section 2. In the event the Closing does not occur within two (2) business days of the anticipated Closing Date specified in the
Closing Notice, OCA shall promptly (but not later than three (3) business days thereafter) return the Subscription Amount in full to
the Investor; provided that, unless this Subscription Agreement has been terminated pursuant to Section 8 hereof, such return of
funds shall not terminate this Subscription Agreement or relieve the Investor of its obligation to purchase shares of Class
A Common Stock at the Closing upon the delivery by OCA of a subsequent Closing Notice in accordance with this Section 2. For
purposes of this Subscription Agreement, “business day” shall mean any day other than a Saturday, Sunday or other day on
which commercial banking institutions in New York, New York are authorized or required to close for business.
3. Closing Conditions.
a.
The obligation of the parties hereto to consummate the sale, purchase and issuance of shares of Class
A Common Stock pursuant to this Subscription Agreement is subject to the following conditions:
(i)
no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule
or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making the consummation of the
transactions contemplated hereby illegal or otherwise enjoining, restraining or prohibiting consummation of (i) the sale, purchase and
issuance of shares of Class A Common Stock pursuant to this Subscription Agreement or (ii)
the Transaction; and
(ii)
(A) all conditions precedent to the closing of the Transaction set forth in Article IX of the Transaction Agreement shall have
been satisfied (which shall be deemed satisfied if mutually determined by the applicable parties to the Transaction Agreement and other
than those conditions under the Transaction Agreement that, by their nature are to be satisfied in connection with the closing of the
Transaction, including to the extent that any such condition is dependent upon the consummation of the sale, purchase and issuance of
shares of Class A Common Stock pursuant to this Subscription Agreement) or waived by the
applicable parties to the Transaction Agreement as provided therein and (B) the closing of the Transaction shall be scheduled to occur
concurrently with or on the same date as the Closing.
b.
The obligation of OCA to consummate the issuance and sale of shares of Class A Common Stock
pursuant to this Subscription Agreement shall be subject to the satisfaction of the conditions (which may be waived in writing (email
being sufficient) by OCA (not to be unreasonably withheld, conditioned or delayed)) that (i) all representations and warranties of the
Investor contained in this Subscription Agreement are true and correct in all material respects at and as of the Closing Date (except
for (1) those representations and warranties qualified by materiality, which shall be true and correct in all respects as of the Closing
Date and (2) those representations and warranties that speak as of a specified earlier date, which shall be so true and correct in all
material respects (or, if qualified by materiality, in all respects) as of such specified earlier date) and (ii) all obligations, covenants
and agreements of the Investor required to be performed by it at or prior to the Closing shall have been performed in all material respects.
c.
The obligation of the Investor to consummate the purchase of shares of Class A Common Stock
pursuant to this Subscription Agreement shall be subject to the satisfaction of the conditions (which may be waived in writing (email
being sufficient) by the Investor) that (i) all representations and warranties of OCA contained in this Subscription Agreement shall be
true and correct in all material respects at and as of the Closing Date (other than representations and warranties that are qualified
as to materiality or Material Adverse Effect (as defined below), which representations and warranties shall be true and correct in all
respects) at and as of the Closing Date (except for those representations and warranties that speak as of a specified earlier date, which
shall be so true and correct in all material respects (or, if qualified by materiality, in all respects) as of such specified earlier
date); and (ii) OCA shall have performed, satisfied and complied in all material respects with all obligations, covenants, agreements
and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
4. Further Assurances.
At or prior to the Closing, the parties hereto shall execute and deliver, or cause to be executed and delivered, such additional documents
and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription
as contemplated by this Subscription Agreement.
5. OCA Representations
and Warranties. OCA represents and warrants to the Investor that:
a.
OCA is duly incorporated and validly existing as a corporation in good standing under the laws of the State of Delaware. OCA has
all power (corporate or otherwise) and authority to own, lease and operate its properties and conduct its business as presently conducted
and to enter into, deliver and perform its obligations under this Subscription Agreement.
b.
As of the Closing Date, shares of Class A Common Stock will be duly authorized and,
when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the
Class A Common Stock will be validly issued, fully paid and non-assessable and will not have
been issued in violation of or subject to any preemptive or similar rights created under OCA’s certificate of incorporation or bylaws
(each, as amended on the Closing Date) or under the General Corporation Law of the State of Delaware or under any agreement or instrument
to which OCA is a party.
c.
This Subscription Agreement has been duly authorized, executed and delivered by OCA and, assuming that this Subscription Agreement
constitutes the valid and binding agreement of the Investor and OCA, this Subscription Agreement is enforceable against OCA in accordance
with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.
d.
The issuance and sale of shares of Class A Common Stock and the compliance by OCA
with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will be done on
accordance with the rules of the Nasdaq marketplace (“Nasdaq”) and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the property or assets of OCA or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage,
deed of trust, loan agreement, lease, license or other agreement or instrument to which OCA or any of its subsidiaries is a party or by
which OCA or any of its subsidiaries is bound or to which any of the property or assets of OCA is subject that would reasonably be expected
to have a material adverse effect on the legal authority of OCA to timely comply in all material respects with the terms of this Subscription
Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents
of OCA; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency
or body, domestic or foreign, having jurisdiction over OCA or any of its properties that would reasonably be expected to have a Material
Adverse Effect.
e. A copy of each form,
report, statement, schedule, prospectus, proxy, registration statement and other document filed by OCA on or prior to the Closing
Date (the “SEC Reports”) is available to the Investor (including via the SEC’s EDGAR system). OCA has
timely filed the SEC Reports with the SEC through the date hereof. As of their respective filing dates, to the best of OCA’s
knowledge, all SEC Reports complied in all material respects with the requirements of the Exchange Act applicable to the SEC Reports
and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Reports. None of the SEC Reports filed under
the Exchange Act (except to the extent that information contained in any SEC Report has been superseded by a later timely filed SEC
Report) contained, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended,
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of OCA
included in the SEC Reports, as applicable, comply in all material respects with applicable accounting requirements and the rules
and regulations of the SEC with respect thereto as in effect at the time of filing, or, if amended, as of the date of such
amendment, and fairly present in all material respects the financial position of OCA as of and for the dates thereof and the results
of operations and cash flows for the periods presented, subject to (i) in the case of unaudited statements, to normal, year-end
audit adjustments, and such consolidated financial statements have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis during the periods involved (“GAAP”) (except as may be
disclosed therein or in the notes thereto, and except that the unaudited financial statements may not contain all footnotes required
by GAAP), and (ii) changes to historical accounting policies of OCA in connection with any order, directive, guideline, comment or
recommendation from the SEC that is applicable to OCA. There are no material outstanding or unresolved comments in comment letters
from the staff of the SEC with respect to any of the SEC Reports. For the avoidance of doubt, any restatement of the financial
statements of OCA and any amendments to previously filed SEC Reports or delays in filing SEC Reports, in connection with any
guidance from the SEC following the date of this Agreement, shall not be deemed to constitute a breach of this Section 5(e).
Additionally, for avoidance of doubt, any amendment or modification of any SEC Report (or any agreement filed as an exhibit to any
SEC Report) from its initial filing date in a subsequent filing shall not be deemed to constitute a breach of this Section 5(e).
f.
As of the date hereof, the authorized share capital of OCA consists of (i) 100,000,000 shares of Class A Common Stock, (ii) 10,000,000
shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock” and together with the Class
A Stock, the “OCA Common Stock”), and (iii) 1,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred
Stock”). As of the date of this Subscription Agreement, (i) no shares of Preferred Stock are issued and outstanding, (ii) 3,900,717
shares of Class A Common Stock are issued and outstanding, and (iii) 3,737,500 shares of Class B Common Stock are issued and outstanding.
All issued and outstanding shares of OCA Common Stock have been duly authorized and validly issued. There are no stockholder agreements,
voting trusts or other agreements or understandings to which OCA is a party or by which it is bound relating to the voting of any securities
of OCA, other than (1) as set forth in the SEC Reports and (2) as contemplated by the Transaction Agreement.
g.
Assuming the accuracy of the representations and warranties of the Investor, OCA is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other
governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by OCA
of this Subscription Agreement (including, without limitation, the issuance of shares of Class A
Common Stock), other than (i) filings with the U.S. Securities and Exchange Commission (the “SEC”), (ii) filings
required by applicable state securities laws, (iii) filings required by Nasdaq, or such other applicable stock exchange on which OCA’s
or the Company’s common equity will be listed (the “Stock Exchange”), (iv) those required to consummate the Transaction
as provided under the Transaction Agreement, and (v) those of which the failure to obtain would not be reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect.
h.
As of the date hereof, there is no suit, action, proceeding or investigation pending or, to the knowledge of OCA, threatened against
OCA by the Stock Exchange or the SEC, respectively, to prohibit the listing of shares of Class A
Common Stock, or the registration of, when issued in connection with the closing of the Transaction, the Class A Common
Stock under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
i.
Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6, no registration under the
Securities Act of 1933, as amended (the “Securities Act”) is required for the offer and sale of shares of Class
A Common Stock by OCA to the Investor hereunder. The shares of Class A Common Stock
(i) were not offered to the Investor by any form of general solicitation or general advertising and (ii) are not being offered to the
Investor in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities
laws.
j.
Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect, as of the date hereof, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental
authority pending, or, to the knowledge of OCA, threatened against OCA or (ii) judgment, decree, injunction, ruling or order of any governmental
entity or arbitrator outstanding against OCA.
k.
OCA has not engaged any broker, finder, commission agent, placement agent or arranger in connection with the sale of shares of
Class A Common Stock, and OCA is not under any obligation to pay any broker’s fee or
commission in connection with the sale of shares of Class A Common Stock.
l. OCA acknowledges and
agrees that, notwithstanding anything herein to the contrary, shares of Class A Common
Stock may be pledged by the Investor in connection with a bona fide margin agreement, provided such pledge shall be (i)
pursuant to an available exemption from the registration requirements of the Securities Act or (ii) pursuant to, and in accordance
with, a registration statement that is effective under the Securities Act at the time of such pledge, and the Investor effecting a
pledge of shares of Class A Common Stock shall not be required to provide OCA with any
notice thereof; provided, however, that neither OCA, the Company or their respective counsels shall be
required to take any action (or refrain from taking any action) in connection with any such pledge, other than providing any such
lender of such margin agreement with an acknowledgment that shares of Class A Common Stock are
not subject to any contractual prohibition on pledging or lock up, the form of such acknowledgment to be subject to review and
comment by OCA in all respects.
6. Investor Representations
and Warranties. The Investor represents and warrants to OCA that:
a.
The Investor, or each of the funds managed by or affiliated with the Investor for which the Investor is acting as nominee, as applicable,
(i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited
investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) of Regulation D under the Securities Act),
in each case, satisfying the applicable requirements set forth on Schedule A hereto, (ii) is acquiring shares of Class A Common
Stock only for its own account and not for the account of others, or if the Investor is subscribing for shares of Class A Common Stock
as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer”
(as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act), and the Investor has full investment discretion with respect to each such account,
and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such
account, and (iii) is not acquiring shares of Class A Common Stock with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act or any securities laws of the United States or any other jurisdiction. The Investor shall provide
the requested information set forth on Schedule A following the signature page hereto and the information contained therein is
accurate and complete. The Investor is not an entity formed for the specific purpose of acquiring shares of Class A Common Stock. The
Investor further acknowledges that it is aware that the sale to it is being made in reliance on a private placement exempt from registration
under the Securities Act and is acquiring shares of Class A Common Stock for its own account or for an account over which it exercises
sole discretion for another qualified institutional buyer or accredited investor.
b.
The Investor acknowledges and agrees that shares of Class A Common Stock are being offered in a transaction not involving any public
offering within the meaning of the Securities Act and that the offer and sale of shares of Class A Common Stock has not been registered
under the Securities Act or any other applicable securities laws. The Investor acknowledges and agrees that shares of Class A Common Stock
may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under
the Securities Act except (i) to OCA or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside
the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the
registration requirements of the Securities Act, and in each of clauses (i) and (iii) in accordance with any applicable securities laws
of the states and other jurisdictions of the United States, and that any book entries representing shares of Class A Common Stock shall
contain a restrictive legend to such effect. The Investor acknowledges and agrees that shares of Class A Common Stock will be subject
to transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer,
pledge or otherwise dispose of shares of Class A Common Stock and may be required to bear the financial risk of an investment in shares
of Class A Common Stock for an indefinite period of time. The Investor acknowledges and agrees that shares of Class A Common Stock will
not immediately be eligible for offer, resale, transfer or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule
144”). The Investor acknowledges and agrees that it has been advised to consult legal counsel and tax and accounting advisors
prior to making any offer, resale, transfer, pledge, transfer or disposition of any shares of Class A Common Stock.
c.
The Investor’s acquisition and holding of shares of Class A Common Stock will not constitute or result in a non-exempt prohibited
transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue
Code of 1986, as amended, or any applicable similar law.
d. The Investor
acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an
investment decision with respect to shares of Class A Common Stock, including, without limitation, with respect to OCA, the
Transaction and the business of the Company and its subsidiaries. Without limiting the generality of the foregoing, the Investor
acknowledges that it has reviewed the SEC Reports and other information as the Investor has deemed necessary to make an investment
decision with respect to shares of Class A Common Stock. The Investor acknowledges and agrees that the Investor and the
Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, including from the Company
directly, receive such answers and obtain such information as the Investor and the Investor’s professional advisor(s), if any,
have deemed necessary to make an investment decision with respect to shares of Class A Common Stock, including but not limited to
access to marketing materials and a virtual data room containing information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient, in the Investor’s judgment, to enable the Investor
to evaluate its investment. The Investor acknowledges that certain information provided by the Company was based on projections, and
such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of
significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from
those contained in the projections. The Investor further acknowledges that it has reviewed or had the full opportunity to review all
disclosure documents provided to such Investor in the offering of shares of Class A Common Stock and no statement or printed
material which is contrary to such disclosure documents has been made or given to the Investor by or on behalf of OCA or the
Company. Except for the representations, warranties and agreements of OCA expressly set forth in this Subscription Agreement, the
Investor is relying exclusively on its, his or her own sources of information, investment analysis and due diligence (including
professional advice it deemed appropriate) with respect to the Transaction, the transactions contemplated hereby, shares of Class A
Common Stock and the business, condition (financial or otherwise), management, operations, properties and prospects of OCA and the
Company, including, but not limited to, all business, legal, regulatory, accounting, credit and tax matters.
e.
The Investor became aware of this offering of shares of Class A Common Stock solely by means of direct contact between the Investor,
OCA, the Company or a representative of OCA or the Company, and shares of Class A Common Stock were offered to the Investor solely by
direct contact between the Investor and OCA, the Company or a representative of OCA or the Company. The Investor did not become aware
of this offering of shares of Class A Common Stock, nor were shares of Class A Common Stock offered to the Investor, by any other means
and none of OCA, the Company or their respective representatives or any person acting on behalf of any of them acted as investment advisor,
broker or dealer to the Investor. The Investor acknowledges that shares of Class A Common Stock (i) were not offered by any form of general
solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution
in violation of, the Securities Act, or any state securities laws. The Investor acknowledges that it is not relying upon, and has not
relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, OCA, the
Company, any of their respective affiliates or any control persons, direct or indirect equity holders, officers, managers, directors,
employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties of OCA contained
in Section 5 of this Subscription Agreement, in making its investment or decision to invest in OCA.
f.
The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of shares of
Class A Common Stock, including, without limitation, those set forth in the SEC Reports. The Investor has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and risks of an investment in shares of Class A Common Stock,
and the Investor has had an opportunity to seek, and has sought such accounting, legal, business and tax advice as the Investor has considered
necessary to make an informed investment decision and the Investor has made its own assessment and satisfied itself concerning relevant
tax and other economic considerations relative to its purchase of shares of Class A Common Stock. The Investor (i) is an institutional
account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and
capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving
a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of shares of Class
A Common Stock. The Investor understands and acknowledges that the purchase and sale of shares of Class A Common Stock hereunder meets
(i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).
g.
Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an
investment in shares of Class A Common Stock and determined that shares of Class A Common Stock are a suitable investment for the Investor
and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s
investment in OCA. The Investor has determined based on its, his or her own independent review and such professional advice as the Investor
deemed appropriate that its, his or her purchase of shares of Class A Common Stock and participation in the Transaction is fully consistent
with its, his or her financial needs, objectives and condition and is a suitable investment for the Investor, notwithstanding the risks
inherent in investing in or holding the subscribed shares of Class A Common Stock.
The Investor acknowledges specifically that a
possibility of total loss exists.
h.
In making its decision to purchase shares of Class A Common Stock, the Investor has relied solely upon independent investigation
made by the Investor.
i.
The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of
shares of Class A Common Stock or made any findings or determination as to the fairness of this investment.
j.
The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction
of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
k.
The execution, delivery and performance by the Investor of this Subscription Agreement and the transactions contemplated herein
are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict
with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other
undertaking, to which the Investor is a party or by which the Investor is bound, and, if the Investor is not an individual, will not conflict
with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation
papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement
is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor
is not an individual, the signatory has been duly authorized to execute the same, and this Subscription Agreement has been duly executed
and delivered by the Investor or the investment advisor to which the Investor has delegated decision making authority over investments
and, assuming that this Subscription Agreement constitutes the valid and binding agreement of OCA, constitutes a legal, valid and binding
obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected
by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of
creditors generally, and (ii) principles of equity, whether considered at law or equity.
l.
The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive
Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by
the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)
or in any Executive Order issued by the President of the United States and administered by OFAC (collectively, the “OFAC
Lists”), or a person or entity prohibited by any OFAC sanctions program, (ii) owned, directly or indirectly, or controlled
by, or acting on behalf of, one or more persons that are named on the OFAC Lists; (iii) organized, incorporated, established, located,
resident or born in, or a citizen, national or the government, including any political subdivision, agency or instrumentality thereof,
of Cuba, Iran, North Korea, Russia, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic and any other Covered Region of Ukraine identified pursuant to Executive Order 14065, and non-government
controlled areas of the Kherson and Zaporizhzhia region of Ukraine or any other country or territory embargoed or subject to substantial
trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part
515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (each, a “Prohibited
Investor”). The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by
applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor represents that it is a financial
institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”),
as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing
regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains
policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. The Investor also represents
that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC administered sanctions
programs, including for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC Lists.
The Investor further represents and warrants that, to the extent required by applicable law, the Investor maintains policies and procedures
reasonably designed to ensure that the funds held by the Investor and used to purchase shares of Class A Common Stock were legally derived
and were not obtained, directly or indirectly, from a Prohibited Investor.
m.
The Investor has or has commitments to have and, when required to deliver payment to OCA
pursuant to Section 2 above, will have, sufficient funds to pay the Subscription Amount and consummate the sale, purchase and issuance
of shares of Class A Common Stock pursuant to this
Subscription Agreement.
n.
The Investor does not have, as of the date hereof, and during the thirty (30) day period immediately prior to the date hereof the
Investor has not entered into and the Investor will not enter into at any point prior to the earlier to occur of the Closing and the termination
of this Subscription Agreement according to its terms, any “put equivalent position” as such term is defined in Rule 16a-1
under the Exchange Act or short sale positions with respect to the securities of OCA. Notwithstanding the foregoing, in the case of an
Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase shares of Class A Common Stock covered by this Subscription Agreement.
o.
The Investor is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group”
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of
acquiring, holding, voting or disposing of equity securities of OCA (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other
than a group consisting solely of the Investor and its affiliates.
7. Indemnification.
a.
OCA agrees to indemnify and hold harmless, to the extent permitted by law, the Investor, its directors, and officers, employees,
and agents, and each person who controls the Investor (within the meaning of the Securities Act or the Exchange Act) and each affiliate
of the Investor (within the meaning of Rule 405 under the Securities Act) from and against any and all losses, claims, damages, liabilities
and expenses (including, without limitation, reasonable and documented attorneys’ fees) caused by any untrue or alleged untrue statement
of material fact contained in any registration statement covering the shares of Class A Common Stock sold hereunder (the “Resale
Registration Statement”), prospectus included in any Resale Registration Statement (“Prospectus”) or preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information
furnished in writing to OCA by or on behalf of the Investor expressly for use therein.
b.
The Investor agrees to indemnify and hold harmless OCA, its directors and officers and agents and each person who controls OCA
(within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including, without limitation,
reasonable and documented attorneys’ fees) resulting from any untrue statement of material fact contained in the Resale Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by or on behalf of the Investor expressly for use therein.
In no event shall the liability of the Investor be greater in amount than the dollar amount of the net proceeds received by such Investor
upon the sale of shares of Class A Common Stock purchased pursuant to this Subscription Agreement giving rise to such indemnification
obligation.
c. Any person entitled to
indemnification herein shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification
hereunder to the extent such failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying
party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying
party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel
for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal
counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified
parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry
of any judgment or enter into any settlement which (1) cannot be settled in all respects by the payment of money (and such money is
so paid by the indemnifying party pursuant to the terms of such settlement), (2) does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or
litigation, or (3) contains any statement of fault or culpability.
d.
The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified
party and shall survive the transfer of shares of Class A Common Stock purchased pursuant to this Subscription Agreement.
e.
If the indemnification provided under this Section 7 from the indemnifying party is unavailable or insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses
in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any
other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference
to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party
or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information
and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities
referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 7 from any person
who was not guilty of such fraudulent misrepresentation. In no event shall the liability of the Investor pursuant to this Section 7 be
greater in amount than the dollar amount of the net proceeds received by such Investor upon the sale of shares of Class A Common Stock
purchased pursuant to this Subscription Agreement giving rise to such indemnification obligation, and such obligations of the Investor
shall be several and not joint.
8. Termination. This
Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties
hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a)
such date and time as the Transaction Agreement is terminated in accordance with its terms without being consummated or (b) upon the
mutual written agreement of each of the parties hereto to terminate this Subscription Agreement (the termination events described in
clauses (a)–(b) above, collectively, the “Termination Events”); provided that nothing herein will relieve
any party from liability for any willful and material breach of any covenant, agreement, obligation, representation or warranty hereunder
prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities
or damages arising from any such willful and material breach. OCA shall notify the Investor in writing of the termination of the Transaction
Agreement as promptly as practicable after the termination of the Transaction Agreement. Upon the occurrence of any Termination Event,
this Subscription Agreement shall be void and of no further effect and any monies paid by the Investor to OCA in connection herewith
shall promptly (and in any event within three (3) business days) following the Termination Event be returned to the Investor.
9. Trust Account Waiver.
The Investor acknowledges that OCA is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization
or similar business combination involving OCA and one or more businesses or assets. The Investor further acknowledges that, as described
in OCA’s final prospectus relating to its initial public offering dated January 14, 2021 (the “Final Prospectus”)
available at www.sec.gov, substantially all of OCA’s assets consist of the cash proceeds of OCA’s initial public offering
and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust
Account”) for the benefit of OCA, its public stockholders and the underwriters of OCA’s initial public offering.
Except with respect to interest earned on the funds held in the Trust Account that may be released to OCA to pay its tax obligations,
if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Final Prospectus. For and in consideration
of OCA entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor, on behalf
of itself and its representatives, hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or
may have in the future, in or to any monies held in the Trust Account (or distributions therefrom to OCA’s public stockholders
or to the underwriters of OCA’s initial public offering in respect of their deferred underwriting commissions held in the Trust
Account), and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement or
the transactions contemplated hereby regardless of whether such claim arises based on contract, tort, equity or any other theory of legal
liability; provided, however, that nothing in this Section 9 shall be deemed to limit the Investor’s right, title, interest or
claim to any monies held in the Trust Account by virtue of its record or beneficial ownership of publicly traded Class A Common Stock
acquired in an open market transaction, pursuant to a validly exercised redemption right with respect to any such Class A Common Stock,
in accordance with OCA’s Amended and Restated Certificate of Incorporation, as amended in connection with the shareholder meeting
of OCA on January 19, 2023 and as may be subsequently amended from time to time, and the Investment Management Trust Agreement between
Continental Stock Transfer & Trust Company and OCA, dated January 14, 2021, except to the extent that the Investor has otherwise
agreed in writing with OCA, the Company or any of their respective affiliates to not exercise such redemption right.
10. Miscellaneous.
a.
Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than shares of Class A Common
Stock acquired hereunder solely in connection with a transfer of such shares of Class A Common Stock (other than a transfer in connection
with a sale pursuant to either an effective registration statement or under Rule 144), if any) may be transferred or assigned. Notwithstanding
the foregoing, after notifying OCA, Investor may assign its rights and obligations under this Subscription Agreement to one or more of
its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Investor)
or, with the Company’s prior written consent, to another person, provided that this Subscription Agreement and any of the Investor’s
rights and obligations hereunder may be assigned to any of its affiliates without the prior written consent of OCA; provided further that
prior to such assignment, any such assignee shall agree in writing to be bound by the terms hereof. No such assignment shall relieve the
Investor of its obligations hereunder if any such assignee fails to perform such obligations.
b.
OCA may request from the Investor such additional information as OCA may deem necessary to register the resale of shares of Class
A Common Stock and evaluate the eligibility of the Investor to acquire shares of Class A Common Stock, and the Investor shall promptly
provide any such information as may be reasonably requested to the extent readily available. Without limiting the generality of the foregoing
or any other covenants or agreements in this Subscription Agreement, the Investor acknowledges that OCA and the Company may file a copy
of this Subscription Agreement with the SEC as an exhibit to a periodic report or a registration statement of OCA or the Company.
c.
The Investor acknowledges that OCA, the Company and others will rely on the acknowledgments, understandings, agreements, representations
and warranties contained in this Subscription Agreement, including Schedule A hereto. Prior to the Closing, the Investor agrees
to promptly notify OCA and the Company in writing (including, for the avoidance of doubt, by email) if any of the acknowledgments, understandings,
agreements, representations or warranties set forth in Section 6 above are no longer accurate in any material respect (other than those
acknowledgments, understandings, agreements, representations and warranties qualified by materiality, in which case the Investor shall
notify OCA and the Company if they are no longer accurate in any respect). The Investor acknowledges and agrees that each purchase by
the Investor of shares of Class A Common Stock from OCA will constitute a reaffirmation of the acknowledgments, understandings, agreements,
representations and warranties herein by the Investor as of the time of such purchase. OCA acknowledges that the Investor will rely on
the acknowledgments, understandings, agreements, representations and warranties of OCA contained in this Subscription Agreement. Prior
to the Closing, OCA agrees to promptly notify the Investor if they become aware that any of the acknowledgments, understandings, agreements,
representations and warranties made by them set forth herein are no longer accurate in all material respects.
d. OCA is entitled to rely
upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby; provided, however,
without limiting the generality of the foregoing and for the avoidance of doubt, in no event shall the Company be entitled to rely
on any of the representations and warranties of OCA set forth in this Subscription Agreement.
e.
All of the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the
Closing.
f.
This Subscription Agreement may not be terminated other than pursuant to the terms of Section 8 above. The Company is a third-party
beneficiary of this Agreement. The provisions of this Subscription Agreement may not be modified, amended or waived except by an instrument
in writing, signed by each of the parties hereto and the Company. No failure or delay of either party hereto in exercising any right or
remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have hereunder.
g.
This Subscription Agreement (including, without limitation, the schedule hereto) constitutes the entire agreement, and supersedes
all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to
the subject matter hereof. Except as set forth in Section 3(b), Section 6, Section 8, Section 10(c), Section 10(d), Section 10(f), this
Section 10(g) and the last sentence of Section 10(k) with respect to the persons specifically referenced therein, this Subscription Agreement
shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns, and
the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement with right
of enforcement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.
h.
Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties
hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations,
warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors,
administrators, successors, legal representatives and permitted assigns.
i.
If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal
or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any
way be affected or impaired thereby and shall continue in full force and effect.
j.
This Subscription Agreement may be executed and delivered in one or more counterparts (including, without limitation, by facsimile
or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed
the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
k.
The parties hereto acknowledge and agree that irreparable damage would occur if any of the provisions of this Subscription Agreement
were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto
shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking
and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition
to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge
and agree that the Company shall be entitled to seek to specifically enforce the Investor’s obligations to fund the Subscription
Amount, OCA’s obligations under this Subscription Agreement and the provisions of the Subscription Agreement of which the Company
is an express third party beneficiary, in each case, on the terms and subject to the conditions set forth herein.
l. This Subscription
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof) as to all matters (including any action, suit,
litigation, arbitration, mediation, claim, charge, complaint, inquiry, proceeding, hearing, audit, investigation or reviews by or
before any governmental entity related hereto), including matters of validity, construction, effect, performance and remedies.
m.
Each party hereto hereby, and any person asserting rights as a third party beneficiary may do so only if it, irrevocably agrees
that any action, suit or proceeding between or among the parties hereto, whether arising in contract, tort or otherwise, arising in connection
with any disagreement, dispute, controversy or claim arising out of or relating to this Subscription Agreement or any related document
or any of the transactions contemplated hereby or thereby (“Legal Dispute”) shall be brought only to the exclusive jurisdiction
of the courts of the State of Delaware or the federal courts located in the State of Delaware, and each party hereto hereby consents to
the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection that it, he or she may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court
has been brought in an inconvenient forum. During the period a Legal Dispute that is filed in accordance with this Section 10(M) is pending
before a court, all actions, suits or proceedings with respect to such Legal Dispute or any other Legal Dispute, including any counterclaim,
cross-claim or interpleader, shall be subject to the exclusive jurisdiction of such court. Each party hereto and any person asserting
rights as a third party beneficiary may do so only if it hereby waives, and shall not assert as a defense in any Legal Dispute, that (a)
such party is not personally subject to the jurisdiction of the above named courts for any reason, (b) such action, suit or proceeding
may not be brought or is not maintainable in such court, (c) such party’s property is exempt or immune from execution, (d) such
action, suit or proceeding is brought in an inconvenient forum, or (e) the venue of such action, suit or proceeding is improper. A final
judgment in any action, suit or proceeding described in this Section 11(m) following the expiration of any period permitted for appeal
and subject to any stay during appeal shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by applicable laws. EACH OF THE PARTIES HERETO AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY MAY
DO SO ONLY IF IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL
DISPUTE RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO. IF
THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY HERETO NOR ANY PERSON ASSERTING
RIGHTS AS A THIRD PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NONCOMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. FURTHERMORE, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD
PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDINGS IN WHICH A JURY TRIAL
CANNOT BE WAIVED.
n.
OCA agrees that it will use reasonable best efforts to cause the Company to grant to the Investor customary registration rights
with respect to Company Common Stock, and that such shares of common stock will be included as “registrable securities” in
a registration rights agreement to be entered into among the Investor, the Company and certain other parties in connection with the closing
of the Transaction.
o.
Any notice or communication required or permitted hereunder to be given to the Investor shall be in writing and either delivered
personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid,
to such address(es) or email address(es) set forth on the signature page hereto, and shall be deemed to be given and received (i) when
so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business
days after the date of mailing to the address below or to such other address or addresses as the Investor may hereafter designate by notice
given hereunder:
(i)
if to the Investor, to such address or addresses set forth on the signature page hereto;
(ii)
if to OCA, to:
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c/o OCA Acquisition Corp. |
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1345 Avenue of the Americas, 33rd Floor |
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New York, NY 10105 |
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Attention: |
David Shen |
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Jeffrey Glat |
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E-mail: |
[***] |
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[***] |
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with a required copy to (which copy shall not constitute notice): |
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Kirkland & Ellis LLP |
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601 Lexington Avenue |
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New York, New York 10022 |
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Attn: |
Christian O. Nagler, P.C. |
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Anthony J. Zangrillo |
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Email: |
[***] |
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[***] |
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11. Non-Reliance and Exculpation. The
Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person,
firm or corporation, other than the statements, representations and warranties of OCA expressly contained in Section 5 of this Subscription
Agreement, in making its investment or decision to invest in OCA. The Investor acknowledges and agrees that none of (i) any other investor
pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of shares of Class A Common
Stock (including the investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents
or representatives of any of the foregoing) or (ii) any other party to the Transaction Agreement or any Non-Party Affiliate, shall have
any liability to the Investor, or to any other investor, pursuant to, arising out of or relating to this Subscription Agreement or any
other subscription agreement related to the private placement of shares of Class A Common Stock, the negotiation hereof or thereof or
its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore
or hereafter taken or omitted to be taken by any of them in connection with the purchase of shares of Class A Common Stock or with respect
to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral
representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies,
misstatements or omissions with respect to any information or materials of any kind furnished by OCA, the Company or any Non-Party Affiliate
concerning OCA, the Company, any of their respective controlled affiliates, this Subscription Agreement or the transactions contemplated
hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer,
director, employee, partner, member, manager, direct or indirect equityholder or affiliate of OCA, the Company or any of OCA’s
or the Company’s controlled affiliates or any family member of the foregoing.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF,
the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set
forth below.
Name of Investor: OCA Acquisition Holdings LLC |
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State/Country of Formation or Domicile: Delaware |
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By: |
Olympus Capital Asia V, L.P., its managing member |
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By: |
Olympus Capital Asia V GP, L.P., its general partner |
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By: |
Olympus Asia GP Corporation, its general partner |
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By: |
/s/ Jeffrey E. Glat |
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Name: |
Jeffrey E. Glat |
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Title: |
Managing Director and Chief Financial Officer |
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Name in which shares of Class A Common Stock are to be registered (if different): |
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Date: December 21, 2023 |
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Investor’s EIN/SSN (as applicable): [***] |
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Business Address-Street:
1345 Avenue of the Americas, 33rd Floor |
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Mailing Address-Street (if different): |
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City, State, Zip:
New York, NY 10105 |
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City, State, Zip: |
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Attn: [***] |
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Attn: |
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Telephone No.: [***] |
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Telephone No.: |
Facsimile No.: [***] |
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Facsimile No.: |
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Email: [***] |
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Email: |
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Number of shares of Class A Common Stock subscribed for: 200,000 |
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Aggregate Subscription Amount: $2,000,000 |
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You must pay the Subscription
Amount by wire transfer of United States dollars in immediately available funds to the account specified by OCA in the Closing Notice.
IN WITNESS WHEREOF, OCA has
accepted this Subscription Agreement as of the date set forth below.
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OCA ACQUISITION CORP. |
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By: |
/s/ David Shen |
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Name: |
David Shen |
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Title: |
Chief Executive Officer and President |
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Date: December 21, 2023 |
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SCHEDULE A
ELIGIBILITY REPRESENTATIONS
OF THE INVESTOR
[***]
16
Exhibit 10.3
FORM OF COMPANY STOCKHOLDER SUPPORT AGREEMENT
This COMPANY STOCKHOLDER SUPPORT
AGREEMENT, dated as of [●], 2023 (this “Agreement”), is entered into by and among the stockholders listed on Exhibit
A hereto (each, a “Stockholder”), Powermers Smart Industries,
Inc., a Delaware corporation (the “Company”), and OCA Acquisition Corp., a Delaware corporation (“Acquiror”).
Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement (as defined
below).
WHEREAS, Company, POWR Merger
Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub”), and Acquiror
are parties to that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, modified or supplemented from time
to time (the “Merger Agreement”), which provides, among other things, that, upon the terms and subject to the conditions
thereof, Merger Sub will be merged with and into Acquiror (the “Merger”), with Acquiror surviving as a direct wholly-owned
subsidiary of the Company;
WHEREAS, as of the date hereof,
each Stockholder owns the number of shares of the Company’s common stock (“Company Common Stock”) as set forth
on Exhibit A hereto (all such shares, or any successor or additional shares of the Company of which ownership of record
or the power to vote is hereafter acquired by the Stockholder prior to the termination of this Agreement being referred to herein as the
“Stockholder Shares”); and
WHEREAS, in order to induce
the Company and Acquiror to enter into the Merger Agreement, each Stockholder is executing and delivering this Agreement to the Company
and Acquiror.
NOW, THEREFORE, in consideration
of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby
agree as follows:
1. Voting Agreements.
Each Stockholder, in its capacity as a stockholder of the Company, agrees that, at any meeting of the Company’s stockholders related
to the transactions contemplated by the Merger Agreement (whether annual or special and whether or not an adjourned or postponed meeting,
however called and including any adjournment or postponement thereof) and/or in connection with any written consent of the Company’s
stockholders related to the transactions contemplated by the Merger Agreement (all meetings or consents related to the Merger Agreement,
collectively referred to herein as the “Meeting”), such Stockholder shall:
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(a) |
when the Meeting is held, appear at the Meeting or otherwise cause the Stockholder Shares to be counted as present thereat for the purpose of establishing a quorum; |
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(b) |
vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Stockholder Shares in favor of the Merger, the Merger Agreement and the transactions contemplated thereby (collectively, the “Stockholder Matters”); |
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(c) |
vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Stockholder Shares in favor of any proposal to adjourn a Meeting at which there is a proposal for stockholders of the Company to adopt the Stockholder Matters to a later date if there are not sufficient votes to adopt the proposal described in clause (b) above or if there are not sufficient shares present in person or represented by proxy at such Meeting to constitute a quorum; |
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(d) |
vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Stockholder Shares against any proposal for any amendment or modification of the Company’s Certificate of Incorporation or Bylaws that would change the voting rights or the number of votes required to approve the Stockholder Matters; and |
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(e) |
vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Stockholder Shares against any Company Alternative Transaction or against any other action that would reasonably be expected to (x) impede, interfere with, delay, postpone or materially and adversely affect the Merger or any of the transactions contemplated by the Merger Agreement, or (y) result in a breach of any covenant, representation or warranty or other obligation or agreement of the Stockholder contained in this Agreement. |
2. Restrictions on
Transfer. During the period commencing on the date hereof and ending on the earlier of (a) the Effective Time and (b) such date and
time as the Merger Agreement shall be terminated in accordance with its terms (the earlier of clauses (a) and (b), the “Expiration
Time”), no Stockholder shall (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase
or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement
with the SEC (other than the Registration Statement described in the Merger Agreement) or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Stockholder
Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of any Stockholder Shares (clauses (i) and (ii) collectively, a “Transfer”) or (iii) publicly announce
any intention to effect any Transfer; provided that the foregoing shall not prohibit the transfer of the Stockholder
Shares by a Stockholder to an Affiliate of such Stockholder, but only if such Affiliate shall execute this Agreement or a joinder agreeing
to become a party to this Agreement. Any Transfer in violation of this Section 2 with respect to the Stockholder Shares shall, to the
fullest extent permitted by applicable Law, be null and void ab initio.
3. New Securities.
During the period commencing on the date hereof and ending on the Expiration Time, in the event that (i) any shares of Company Common
Stock or other equity securities of Company are issued to the Stockholder after the date of this Agreement pursuant to any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of Company securities owned by the Stockholder, (ii) the Stockholder
purchases or otherwise acquires beneficial ownership of any shares of Company Common Stock or other equity securities of Company after
the date of this Agreement, or (iii) the Stockholder acquires the right to vote or share in the voting of any Company Common Stock or
other equity securities of Company after the date of this Agreement (such Company Common Stock or other equity securities of the Company,
collectively the “New Securities”), then such New Securities acquired or purchased by the Stockholder shall be subject
to the terms of this Agreement to the same extent as if they constituted the Stockholder Shares as of the date hereof.
4. No Challenge.
Each Stockholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out
of any class in any class action with respect to, any claim, derivative or otherwise, against the Company, Merger Sub or Acquiror or any
of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision
of this Agreement or the Merger Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation,
negotiation or entry into the Merger Agreement.
5. Waiver. Each
Stockholder hereby irrevocably and unconditionally waives any rights of appraisal, dissenter’s rights and any similar rights relating
to the Merger Agreement and the consummation by the parties of the transactions contemplated thereby, including the Merger, that such
Stockholder may have under applicable law (including Section 262 of the DGCL or otherwise).
6. Voting Power or
Proxy. No voting powers or proxies are granted in respect of any voting power held by any Stockholder in favor of any other person
by operation of this Agreement.
7. Consent to Disclosure.
Each Stockholder hereby consents to the publication and disclosure in the Registration Statement and the Proxy Statement (and, as and
to the extent otherwise required by applicable securities laws or the SEC or any other securities authorities, any other documents or
communications provided by the Acquiror or the Company to any Governmental Authority or to securityholders of the Company or Acquiror)
of such Stockholder’s identity and beneficial ownership of Stockholder Shares and the nature of such Stockholder’s commitments,
arrangements and understandings under and relating to this Agreement and, if deemed appropriate by the Company or Acquiror, a copy of
this Agreement; provided that, to the extent practicable, the Company and Acquiror will provide the Stockholder with advance notice of
such publication and disclosure and an opportunity to review and reasonably comment on such disclosure or publication. Each Stockholder
will promptly provide any information reasonably requested by the Company or Acquiror for any regulatory application or filing made or
approval sought in connection with the transactions contemplated by the Merger Agreement (including filings with the SEC).
8. Stockholder Representations:
Each Stockholder represents and warrants to the Company and Acquiror that, as of the date hereof:
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(a) |
such Stockholder has full right and power, without violating any agreement to which it is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer) to enter into this Agreement; |
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(b) |
(i) if such Stockholder is not an individual, such Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Stockholder’s organizational powers and have been duly authorized by all necessary organizational actions on the part of the Stockholder and (ii) if such Stockholder is an individual, the signature on this Agreement is genuine, and such Stockholder has legal competence and capacity to execute the same; |
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(c) |
this Agreement has been duly executed and delivered by such Stockholder and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with the terms hereof (except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies); |
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(d) |
the execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of such Stockholder, or (ii) require any consent or approval from any third party that has not been given or other action that has not been taken by any third party, in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such Stockholder of its obligations under this Agreement; |
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(e) |
there are no Actions pending against such Stockholder or, to the knowledge of such Stockholder, threatened against such Stockholder, before (or, in the case of threatened Actions, that would be before) any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Stockholder of such Stockholder’s obligations under this Agreement; |
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(f) |
no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with this Agreement or any of the respective transactions contemplated hereby, based upon arrangements made by the Stockholder or, to the knowledge of such Stockholder, by the Company; |
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(g) |
such Stockholder has had the opportunity to read the Merger Agreement and this Agreement and has had the opportunity to consult with such Stockholder’s tax and legal advisors; |
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such Stockholder has not entered into, and shall not enter into, any agreement that would prevent such Stockholder from performing any of such Stockholder’s obligations hereunder; |
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(i) |
such Stockholder has good title to the Stockholder Shares opposite such Stockholder’s name on Exhibit A, free and clear of any Liens other than Permitted Liens, and such Stockholder has the sole power to vote or cause to be voted such Stockholder Shares; and |
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the Stockholder Shares identified in Section 2 of this Agreement are the only shares of the Company’s outstanding capital stock owned of record or beneficially owned by the Stockholder as of the date hereof, and none of such Stockholder Shares are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Stockholder Shares that is inconsistent with such Stockholder’s obligations pursuant to this Agreement. |
9. Damages; Remedies.
Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of
any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude
the exercise of any other remedy. The Stockholder hereby agrees and acknowledges that (a) Acquiror and the Company would be irreparably
injured in the event of a breach by the Stockholder of its obligations under this Agreement, (b) monetary damages may not be an adequate
remedy for such breach and (c) the non-breaching party shall be entitled to an injunction or injunctions, specific performance and other
equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each
case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they
are entitled at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance
and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other party has an adequate
remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
10. Entire Agreement;
Amendment. This Agreement and the other agreements referenced herein constitute the entire agreement and understanding of the parties
hereto in respect of the subject matter hereof and supersede all prior and contemporaneous understandings and agreements related hereto
(whether written or oral), to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
No provision of this Agreement may be explained or qualified by any agreement, negotiations, understanding, discussion, conduct or course
of conduct or by any trade usage. Except as otherwise expressly stated herein, there is no condition precedent to the effectiveness of
any provision hereof. This Agreement may not be changed, amended or modified as to any particular provision, except by a written instrument
executed by all parties hereto, and cannot be terminated orally or by course of conduct. No provision hereof can be waived, except by
a writing signed by the party against whom such waiver is to be enforced, and any such waiver shall apply only in the particular instance
in which such waiver shall have been given.
11. Assignment.
No party hereto may, except as set forth herein, assign either this Agreement or any of its rights, interests, or obligations hereunder,
including by merger, consolidation, operation of law or otherwise, without the prior written consent of the other parties. Any purported
assignment or delegation in violation of this paragraph shall be void and ineffectual, and shall not operate to transfer or assign any
interest or title to the purported assignee. This Agreement shall be binding on the Stockholder, the Acquiror and the Company and each
of their respective successors, heirs, personal representatives and assigns and permitted transferees.
12. Counterparts.
This Agreement may be executed in any number of original, electronic or facsimile counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. This Agreement
shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied,
or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties.
13. Severability.
This Agreement shall be deemed severable, and a determination by a court or other legal authority that any provision that is not of the
essence of this Agreement is legally invalid shall not affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, the parties shall cooperate in good faith to substitute (or cause such court or other legal authority to
substitute) for any provision so held to be invalid a valid provision, as alike in substance to such invalid or unenforceable provision
as may be possible and be valid and enforceable.
14. Governing Law;
Jurisdiction; Jury Trial Waiver. Section 11.06 and Section 11.12 of the Merger Agreement are incorporated by reference herein to apply
with full force to any disputes arising under this Agreement.
15. Notice. Any
notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall
be sent or given in accordance with the terms of Section 11.02 of the Merger Agreement to the applicable party, with respect to the Company
and Acquiror, at the respective addresses set forth in Section 11.02 of the Merger Agreement, and, with respect to Stockholder, at the
address set forth on Exhibit A.
16. Termination.
This Agreement shall terminate on the Termination Date. No such termination shall relieve the Stockholder, Acquiror or the Company from
any liability resulting from a breach of this Agreement occurring prior to such termination.
17. Adjustment for
Stock Split. If, and as often as, there are any changes in the Stockholder Shares by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means
prior to the Termination Date, equitable adjustment shall be made to the provisions of this Agreement as may be required so that the rights,
privileges, duties and obligations hereunder shall continue with respect to the Stockholder, Acquiror, the Company, the Stockholder Shares
as so changed.
18. Further Actions.
Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment, transfer
or conveyance as may reasonably be considered within the scope of such party’s obligations hereunder, as may be necessary or desirable
to effectuate the purposes hereof.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first written above.
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[Signature Page to Support Agreement]
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Exhibit 10.4
OCA Acquisition Corp.
1345 Avenue of the Americas, 33rd Floor
New York, New York 10022
Powermers Smart Industries, Inc.
1500 Broadway, Suite 3300A
New York, New York 10036
SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT
(this “Agreement”), dated as of December 21, 2023, is made by and among OCA Acquisition Holdings, LLC, a Delaware limited
liability company (the “Sponsor”), Powermers Smart Industries, Inc., a Delaware corporation (the “Company”),
OCA Acquisition Corp., a Delaware corporation ( “Acquiror”), Antara Total Return SPAC Master Fund LP (the “Investor”
and together with the Sponsor, the “Sponsor Parties”) and the undersigned individuals (together with the Sponsor, the
“Insiders”). The Sponsor, the Company, Acquiror, the Investor and the Insiders shall be referred to herein from time
to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, the Acquiror, the
Company and POWR Merger Sub, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Merger Sub”),
entered into that certain Business Combination Agreement, dated as of the date hereof (as it may be amended, restated, supplemented, modified
or waived from time to time in accordance with its terms, the “Merger Agreement”); and
WHEREAS, the Merger Agreement
contemplates that the Parties will enter into this Agreement concurrently with the entry into the Merger Agreement by the parties thereto,
pursuant to which, among other things, (i) the Sponsor and the Investors shall agree to vote all the shares of Acquiror Common Stock beneficially
owned by them in favor of the Acquiror Stockholder Matters and the Extension Proposal, (ii) effective as of immediately prior to the Effective
Time, the Sponsor shall forfeit and surrender to Acquiror for cancellation all but 4,500,000 of the Acquiror Warrants then held by it
(exclusive of any Acquiror Warrants purchased by the Sponsor in the open market and warrants described
in the immediately following clause (iii)), (iii) effective as of immediately prior to the
Effective Time, the Sponsor shall convert all outstanding loans made to Acquiror into warrants to purchase Acquiror Class A Common Stock;
(iv) the Sponsor shall be responsible for any necessary capital contributions, stockholder inducements or other incentives necessary to
effectuate the Extension Proposal, and (v) the Sponsor shall use its best efforts to facilitate the PIPE Investment.
NOW, THEREFORE, in order to
induce the Company to enter into the Merger Agreement and in consideration of the premises and the mutual promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to
be legally bound, hereby agree as follows:
1. Consent
to Merger
(a) Each
Sponsor Party (in his, her or its capacity as a stockholder of Acquiror and on behalf of himself or itself and not the other Sponsor Parties)
hereby agrees to vote (or cause to be voted) at any meeting of the stockholders of Acquiror or adjournment or postponement thereof (each,
a “Special Meeting”), and in any action by written resolution of the stockholders of Acquiror, all of such Sponsor
Party’s Subject Acquiror Equity Securities (as defined below) and all other equity securities of Acquiror such Sponsor Party is
entitled to vote on the matter in favor of the Transactions (including the adoption of the Merger Agreement), and against any action,
proposal, transaction, agreement or other matter presented at a Special Meeting that would reasonably be expected to (i) result in a breach
of Acquiror’s covenants, agreements or obligations under the Merger Agreement, (ii) cause any of the conditions to the Closing set
forth in Article IX of the Merger Agreement not to be satisfied or (iii) otherwise materially impede, materially interfere with, materially
delay, materially discourage, materially and adversely affect or materially inhibit the timely consummation of, the transactions contemplated
by the Merger Agreement.
(b) Each
Sponsor Party agrees, except in a manner not in direct or indirect contravention or breach of the Merger Agreement or any Transaction
Agreement, not to make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies”
or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence
any Person with respect to the voting of, any equity interests of Acquiror in connection with any vote or other action with respect to
the Transactions or any Transaction Agreement, other than to recommend that the Acquiror Stockholders vote in favor of the Transactions,
including the adoption of the Merger Agreement, the Transaction Agreements and the Transactions (and any actions required in furtherance
thereof and otherwise as expressly provided in this Section 1).
(c) Each
Sponsor Party agrees not to commence or bring in any claim challenging the validity of any provision of this Agreement.
(d) In
the event of any equity dividend or distribution, or any change in the equity interests of Acquiror by reason of any equity dividend or
distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like prior to the Closing,
the term “Subject Acquiror Equity Securities” shall be deemed to refer to and include all of the Acquiror Common Stock and
Acquiror Warrants held of record or beneficially by such Sponsor Party as of such time (the Acquiror Common Stock and Acquiror Warrants
that such Sponsor Party holds of record or beneficially as of any determination time are hereinafter referred to, with respect to each
Sponsor Party, as the “Subject Acquiror Equity Securities”), as well as all such equity dividends and distributions
and any securities into which or for which any or all of the Subject Acquiror Equity Securities may be changed or exchanged or which are
received in such transaction.
2. Transfer
Restrictions.
(a) Sponsor
agrees that, during the period from the date hereof through the Termination Date, except as contemplated by this Agreement and the Business
Combination Agreement, it shall not, and shall cause its Affiliates not to, without the prior written consent of the Company (which consent
may be given or withheld by Acquiror in its sole discretion), directly or indirectly: (i) offer for sale, sell (including short sales),
transfer, tender, hypothecate, pledge, convert, encumber, assign or otherwise dispose of, directly or indirectly (including by gift, merger,
tendering into any tender offer or exchange offer or otherwise, for avoidance of doubt, including by any other Transfer, as defined in
that certain Letter Agreement, dated as of January 14, 2021, by and among Acquiror, Sponsor and members of the board of directors and/or
management team of Acquiror (the “Letter Agreement”)), or enter into any contract, option, derivative, swap, hedging
or other agreement or arrangement or understanding (including any profit sharing arrangement) with respect to, or consent to, a transfer
to another, in whole or in part, any of the economic consequences of ownership (collectively, a “Transfer”), any or
all of its shares of Acquiror Common Stock or Acquiror Warrants, or (ii) grant any proxies or powers of attorney with respect to any or
all of its shares of Acquiror Common Stock and Acquiror Warrants (except in connection with voting by proxy at a Special Meeting as contemplated
in Section 1), or (iii) permit to exist any Lien with respect to any or all of its shares of Acquiror Common Stock and Acquiror Warrants
other than those created by this Agreement or the Letter Agreement; provided, that any Lien with respect to Acquiror Common Stock and
Acquiror Warrants that would not prevent, impair or delay its ability to comply with the terms and conditions of this Agreement shall
be permitted and shall not be deemed to violate the restrictions contained above. Notwithstanding the foregoing, this Section 2(a) shall
not prohibit a Transfer by Sponsor of any of its shares of Acquiror Common Stock and Acquiror Warrants, (A) to Acquiror’s officers
or directors, any Affiliate or family member of any of Acquiror’s officers or directors, any Affiliate of Sponsor or to any members
or partners of Sponsor or any of their Affiliates; (B) in the case of an individual, by gift to a member of such individual’s immediate
family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual
or to a charitable organization; (C) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual;
(D) in the case of an individual, pursuant to a qualified domestic relations order; or (E) by private sales or transfers made in connection
with any forward purchase agreement, subscription agreement or similar arrangement or in connection with the consummation of an initial
business combination at prices no greater than the price at which the securities were originally purchased; provided, that, in each case,
such Transfer shall be permitted only if, prior to or in connection with such Transfer, the transferee agrees in writing to assume all
of the obligations of Sponsor hereunder and to be bound by the terms of this Agreement.
(b) Any
Transfer in violation of this Section 2 shall be null and void ab initio.
(c) Sponsor
irrevocably and unconditionally agrees that, from the date hereof and until the termination of this Agreement, Sponsor shall not elect
to cause Acquiror to redeem any Covered Shares now or at any time legally or beneficially owned by Sponsor, or submit or surrender any
of its shares of Acquiror Common Stock for redemption, in connection with the transactions contemplated by the Business Combination Agreement
or otherwise.
3. Conversion
of All Outstanding Loans Made to Acquiror. Effective as of immediately prior to the Effective Time, (i) the Sponsor shall convert
the Promissory Notes set forth in items (1) and (2) of Schedule 7.01(viii) of the Merger Agreement into warrants to purchase Acquiror
Class A Common Stock pursuant to the terms thereof and (ii) any and all outstanding loans made to Acquiror still outstanding (to any degree)
(Other than the Promissory Notes described in the immediately preceding clause (i)) shall be converted into
Post-IPO Warrants (as defined in the Warrant Agreement) at $1.00 per Post-IPO Warrant, with the same terms as the Public Warrants (as
defined in the Warrant Agreement).
4. Forfeiture
of Acquiror Warrants. Effective as of immediately prior to the Warrant Conversion, the Sponsor shall forfeit and surrender to Acquiror
for cancellation all but 4,500,000 of the Acquiror Warrants then held by it (exclusive of any Acquiror Warrants purchased by the Sponsor
in the open market and warrants described in Section 3 above)). Sponsor and Acquiror shall take any action and consummate any agreements,
transactions, and other documentation necessary to effectuate the forfeiture and cancellation of the requisite amount of Acquiror Warrants.
5. Extension
Proposal. Each Sponsor Party agrees, except in a manner not in direct or indirect contravention or breach of the Merger Agreement
or any Transaction Agreement, not to make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies”
or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence
any Person with respect to the voting of, any equity interests of Acquiror in connection with any vote or other action with respect to
the Extension Proposal, other than to recommend that the Acquiror Stockholders vote in favor of the Extension Proposal and each other
proposal presented at the Extension Stockholders’ Meeting. If the Extension Proposal is approved and the related amendment to the
Acquiror Organizational Documents (the “Charter Amendment”) becomes effective, the Sponsor (or one or more of its affiliates,
members or third-party designees) shall deposit into the Trust Account the amount required by the Charter Amendment, at the frequency
and within the time period required by the Charter Amendment, in order to extend the period of time Acquiror is afforded under the Acquiror
Organizational Documents until the earlier of the Closing or January 20, 2025.
6. PIPE
Investment. During the Interim Period, the Sponsor shall use reasonable best efforts to identify
and obtain commitments from PIPE Investors for the PIPE Investment in exchange for PIPE Securities of the Acquiror, to be consummated
concurrently with the Closing but immediately before the Effective Time. The terms of the
PIPE Investment shall be mutually agreed upon by Acquiror and the Company and set forth in the PIPE
Agreements. Acquiror will prepare the PIPE Agreements or cause the PIPE Agreements to be prepared. The Sponsor shall use 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 to cause
the PIPE Investment to be consummated on the terms set forth in the PIPE Agreements, and in the manner described in the Merger Agreement.
7. Amendment
to the Letter Agreement.
(a) Each
of Acquiror, the Sponsor and the Insiders hereby agrees that, effective as of the Closing Date (and not before) any provisions in the
Letter Agreement related to the Private Placement Warrants (as defined therein) or Common Stock (as defined therein) underlying the Private
Placement Warrants shall refer to the Company Common Stock or warrants of the Company, as applicable, outstanding as of the Closing and
held by the holders of Private Placement Warrants following the assumption thereof by the Company as contemplated by the Merger Agreement.
(b) For
the avoidance of doubt, the amendment set forth in this Section 8 shall be void and of no force and effect with respect to the Letter
Agreement if the Merger Agreement shall be terminated for any reason in accordance with its terms. Except as set forth in this Section
8, during the period beginning on the date of this Agreement and ending on the earlier of (x) the Effective Time and (y) the date on which
the Merger Agreement is validly terminated in accordance with its terms, for the benefit of the Company, (a) Sponsor, the Investor and
the Insiders agree that they will comply with, and perform all of their obligations, covenants and agreements set forth in, the Letter
Agreement in all material respects, including voting in favor of the Transactions and not redeeming its Acquiror Common Stock in connection
with the Transactions, (b) Acquiror agrees to enforce the Letter Agreement in accordance with its terms, and (c) each of Sponsor, the
Investor and the Insiders and Acquiror agree not to amend, modify or waive any provisions of the Letter Agreement without the prior written
consent of the Company (not to be unreasonably withheld, delayed or conditioned).
8. Waiver
of Anti-dilution Protection. With respect to its shares of Acquiror Common Stock, Sponsor and the Investor hereby waives and shall
refrain from asserting or perfecting, subject to, conditioned upon and effective as of immediately prior to the occurrence of the Closing
(for itself and for its successors and assigns), to the fullest extent permitted by Law and the Acquiror Organizational Documents, any
rights to adjustment of the conversion ratio with respect to the shares of Acquiror Common Stock owned by Sponsor set forth in the Acquiror
Organizational Documents or otherwise (including the rights set forth in Section 4.3(b) of the Certificate of Incorporation of Acquiror,
as amended). Notwithstanding anything to the contrary contained herein, Sponsor shall not be prohibited from waiving, asserting or perfecting
any of the foregoing rights in the event the Merger Agreement is validly terminated in accordance with its terms. If the Merger Agreement
is so terminated, then this Section 9 shall be deemed null and void ab initio.
9. Other
Covenants.
(a) From
the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Section 12, neither the Acquiror
nor any Sponsor Party shall, and the Acquiror and each Sponsor Party shall instruct its and their representatives not to, (i) make any
proposal or offer that constitutes a SPAC Alternative Transaction, (ii) initiate any discussions or negotiations with any Person with
respect to a SPAC Alternative Transaction or (iii) enter into any acquisition agreement, business combination, merger agreement or similar
definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating
to a SPAC Alternative Transaction, in each case, other than to or with the Company and its respective representatives. From and after
the date hereof, the Acquiror and each Sponsor Party shall, and shall instruct its officers and directors (if applicable) and its representatives
to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to a SPAC Alternative
Transaction.
(b) The
Sponsor hereby agrees to provide to Acquiror, the Company and their respective Representatives any information in its possession or control
regarding such Sponsor Party or the Subject Acquiror Equity Securities that is reasonably requested by Acquiror, the Company or their
respective Representatives and is required in order for the Company and Acquiror to comply with Section 7.02 (Trust Account Proceeds),
Section 8.02 (Registration Statement; Proxy Statement; Special Meeting) and Section 8.05 (Confidentiality; Publicity) of the Merger Agreement.
To the extent required by applicable Law, the Sponsor hereby authorizes the Company and Acquiror to publish and disclose in any announcement
or disclosure required by the SEC, Nasdaq or the Registration Statement and Proxy Statement (including all documents and schedules filed
with the SEC in connection with the foregoing), the Sponsor’s identity and ownership of the Subject Acquiror Equity Securities and
the nature of the Sponsor’s commitments and agreements under this Agreement, the Merger Agreement and any other Transaction Agreements;
provided, that such disclosure is made in compliance with the provisions of the Merger Agreement.
(c) Each
Sponsor Party and Insider acknowledges and agrees that the Company is entering into the Merger Agreement in reliance upon each Sponsor
Party and Insider entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the
agreements, covenants and obligations contained in this Agreement and but for each such Sponsor Party and Insider entering into this Agreement
and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained
in this Agreement, the Company would not have entered into or agreed to consummate the Transactions or the Transaction Agreements.
10. Sponsor
Party Representations and Warranties. Each Sponsor Party, severally and not jointly, represents and warrants to Merger Sub and the
Company as follows, solely with respect to such Sponsor Party:
(a) Ownership.
To the extent any Sponsor Party owns any Subject Acquiror Equity Securities, such Sponsor Party owns free and clear of all Liens (other
than transfer restrictions under applicable securities Laws) the number of Subject Acquiror Equity Securities set forth opposite such
Sponsor Party’s name on the signature page to this Agreement. Such Sponsor Party has, and will have at all times during the term
of this Agreement, the sole voting power with respect to his, her or its Subject Acquiror Equity Securities. Such Subject Acquiror Equity
Securities are the only equity securities in Acquiror owned of record or beneficially by such Sponsor Party on the date of this Agreement,
and none of such Subject Acquiror Equity Securities is subject to any proxy, voting trust or other agreement or arrangement with respect
to the voting of such Subject Acquiror Equity Securities, except as provided hereunder. Such Sponsor Party does not hold or own any rights
to acquire (directly or indirectly) any equity interests in Acquiror or any equity securities convertible into, or that can be exchanged
for, equity securities of Acquiror, other than those rights associated with the Subject Acquiror Equity Securities.
(b) Organization.
If such Sponsor Party is not an individual, it is duly organized, validly existing and in good standing (where applicable) under the Laws
of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby are within such Sponsor Party’s corporate or organizational powers
and have been duly authorized by all necessary corporate or organizational action on the part of the Sponsor Party. If such Sponsor Party
is an individual, such Sponsor Party has full legal capacity, right and authority to execute and deliver this Agreement and to perform
such Sponsor Party’s obligations hereunder.
(c) Authority.
This Agreement has been duly executed and delivered by such Sponsor Party and, assuming the due authorization, execution and delivery
hereof by the other Parties hereto, this Agreement constitutes a legally valid and binding obligation of such Sponsor Party, enforceable
against such Sponsor Party in accordance with the terms hereof (subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). If this Agreement
is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into
this Agreement on behalf of such Sponsor Party.
(d) Non-Contravention.
The execution and delivery of this Agreement by such Sponsor Party does not, and the performance by such Sponsor Party of its obligations
hereunder will not, (i) result in a violation of applicable Law, except for such violations which would not reasonably be expected, individually
or in the aggregate, to have a material adverse effect upon such Sponsor Party’s ability to perform its obligations under this Agreement
or to consummate the transactions contemplated by this Agreement, (ii) if such Sponsor Party is not an individual, conflict with or result
in a violation of the governing documents of such Sponsor Party, or (iii) require any consent or approval that has not been given or other
action that has not been taken by any Person (including under any Contract binding upon such Sponsor Party or the Sponsor Party’s
Subject Acquiror Equity Securities).
(e) Legal
Proceedings. As of the date of this Agreement, there is no Action pending against, or to the knowledge of such Sponsor Party, threatened
against such Sponsor Party or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority that, if
determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the
aggregate, to have a material adverse effect upon the ability of such Sponsor Party to perform its obligations under this Agreement or
to consummate the transactions contemplated by this Agreement. None of such Sponsor Party or any of its Affiliates is subject to any Governmental
Order that would reasonably be expected, individually or in the aggregate, to have a material adverse effect upon the ability of such
Sponsor Party to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement or the
Merger Agreement.
(f) Brokers’
Fees. Except for the fees described in Section 5.11 of the Acquiror Disclosure Schedules, no investment banker, broker, finder or
other intermediary is entitled to a fee or commission from such Sponsor Party in respect of the Merger Agreement, this Agreement or any
of the respective Transactions and hereby based upon any arrangement or agreement made by a Sponsor Party.
11. Termination.
This Agreement shall automatically terminate, without any notice or other action by any Party, upon the valid termination of the Merger
Agreement in accordance with its terms, and upon such termination, this Agreement shall be null and void and of no effect whatsoever,
and the Parties hereto shall have no rights or obligations under this Agreement.
12. No
Recourse. This Agreement may be enforced only against, and any claim or cause of action based upon, arising out of, or related to
this Agreement may be made only against, the Parties. Except to the extent a Party hereto (and then only to the extent of the specific
obligations undertaken by such Party herein), (i) no past, present or future director, manager, officer, employee, incorporator, member,
partner, direct or indirect equityholder, Affiliate, agent, attorney, advisor or representative or Affiliate of a Party, (ii) no past,
present or future director, officer, employee, incorporator, member, partner, direct or indirect equityholder, shareholder, Affiliate,
agent, attorney, advisor or representative or Affiliate of a Party and (iii) no successor, heir or representative of a Party shall have
any liability (whether in Contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements
or other obligations or liabilities of any one or more of the Parties under this Agreement for any claim based on, arising out of, or
related to this Agreement.
13. Fiduciary
Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Investor makes no agreement or understanding herein in
any capacity other than in the Investor’s capacity as a record holder and beneficial owner of the Subject Acquiror Equity Securities,
and not, as applicable, in the Investor’s capacity as a director, officer or employee of Acquiror and (b) nothing herein will be
construed to limit or affect any action or inaction by the Investor or any other Person (including any representative of the Sponsor)
serving as a member of the board of directors (or other similar governing body) of Acquiror or as an officer or employee of Acquiror,
in each case, acting in such Person’s capacity as a director, officer or employee of Acquiror.
14. No
Third-Party Beneficiaries. Except as set forth in Section 20, this Agreement shall be for the sole benefit of the Parties and
Merger Sub and their respective successors and permitted assigns and is not intended, nor shall be construed, to give any Person, other
than the Parties and Merger Sub and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature
whatsoever by reason this Agreement. Nothing in this Agreement, expressed or implied, is intended to or shall constitute the Parties,
partners or participants in a joint venture.
15. Remedies.
The Parties agree that irreparable damage for which monetary damages would be insufficient would occur in the event that any Party does
not perform his or its respective obligations under the provisions of this Agreement (including failing to take such actions as are required
of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise
breach such provisions. It is accordingly agreed that each Party shall be entitled to seek an injunction or injunctions, specific performance
and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement,
in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which
they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance
and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Parties have an
adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
16. Fees
and Expenses. Except as otherwise expressly set forth in the Merger Agreement, all fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants,
shall be paid by the Party incurring such fees or expenses; provided, that any such fees and expenses incurred by the Investor
on or prior to the Effective Time shall, in the sole discretion of the Sponsor, be allocated to Acquiror and deemed to be Acquiror Transaction
Expenses.
17. No
Ownership Interest. Nothing contained in this Agreement will be deemed to vest in Merger Sub, the Company or any of their Affiliates
or Acquiror or any of its Affiliates any direct or indirect ownership or incidents of ownership of or with respect to Acquiror Common
Stock held by any Sponsor Party. All rights, ownership and economic benefits of and relating to the applicable Acquiror Common Stock shall
remain vested in and belong to each applicable Sponsor Party, and the Company, Merger Sub and Acquiror (and each of their respective Affiliates)
shall have no authority to exercise any power or authority to direct any Sponsor Party in the voting of any Acquiror Common Stock owned
by him, her or it (if any). Except as otherwise set forth in this Agreement, no Sponsor Party shall be restricted from voting in favor
of, against or abstaining with respect to any other matters presented to the Acquiror Stockholders.
18. Amendments
and Waivers. Any provision of this Agreement may be amended or modified in whole or in part only by an agreement in writing and signed
by the Parties, and any provision of this Agreement may be waived if such waiver is in writing and signed by the Party(ies) against whom
such waiver is sought. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
19. Assignment.
None of this Agreement or any of the rights, interests or obligations hereunder shall be assignable by a Party without the prior written
consent of the other Parties hereto. Any attempted amendment or assignment of this Agreement not in accordance with the terms of this
Section 20 shall be null and void ab initio. This Agreement shall be binding on and inure to the benefit of, the Parties and their
respective successors, heirs, personal representatives and assigns and permitted transferees.
20. Several
and Not Joint. The representations, warranties, covenants and agreements set forth herein shall be several (and not joint or joint
and several) representation, warranties, covenants and agreements of each Sponsor Party.
21. Notices.
Any notice, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given
(i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail,
return receipt requested, postage prepaid, (iii) when delivered by FedEx or another nationally recognized overnight delivery service or
(iv) when delivered by email (unless an “undeliverable” or similar message is received with respect to each email address
provided in or pursuant to this Section 22 for the applicable Party) (provided, that, any such notice or other communication delivered
in the manner described in any of the preceding clauses (i), (ii) and (iii) shall also be delivered by email no later than 24 hours after
being dispatched in the manner described in the preceding clause (i), (ii) or (iii), as applicable), in each case, addressed as follows:
If to the Sponsor, Acquiror
or the Investor, to:
OCA Acquisition Corp.
485 Madison Avenue, 17th Floor
New York, New York 10022
Attention: David Shen
Email: [***]
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York NY 10022
Attention: Christian O. Nagler, P.C.; Jason Krause
Email: [***]; [***]
If to the Company or Merger Sub, to:
Powermers Smart Industries Inc.
1500 Broadway, Suite 3300A
New York, New York 10036
Attention: Chris Thorne
Email: [***]
with a copy (which shall not constitute notice) to
Graubard Miller
405 Lexington Avenue, 44th Floor
New York, New York 10174
Attention: David A. Miller; Jeffrey M. Gallant
Email: [***]; [***]
22. Incorporation by Reference.
Sections 11.06 (Governing Law), 11.07 (Captions; Counterparts) 11.09 (Entire Agreement), 11.11 (Severability), and 11.12 (Jurisdiction;
WAIVER OF TRIAL BY JURY) of the Merger Agreement are incorporated herein and shall apply to this Agreement mutatis mutandis.
[signature pages follow]
IN WITNESS WHEREOF, each
of the Parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
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OCA ACQUISITION HOLDINGS, LLC |
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By: Olympus Capital Asia V, L.P., its managing member |
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By: Olympus Capital Asia V GP, L.P., its general partner |
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By: Olympus Asia GP Corporation, its general partner |
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/s/ Jeffrey E. Glat |
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Jeffrey E. Glat |
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Managing Director and Chief Financial Officer |
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OCA ACQUISITION CORP. |
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/s/ David Shen |
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David Shen |
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Chief Executive Officer |
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POWERMERS SMART INDUSTRIES, INC. |
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/s/ Christopher Thorne |
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Christopher Thorne |
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Chairman & CEO |
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ANTARA TOTAL RETURN SPAC MASTER FUND LP |
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by Antara Capital Total Return SPAC Master Fund GP LLC, its general partner |
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/s/ Himanshu Gulati |
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Himanshu Gulati |
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Managing Member |
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INSIDERS |
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/s/ David Shen |
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David Shen |
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/s/ Jeffrey Glat |
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Jeffrey Glat |
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/s/ Daniel Mintz |
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/s/ Gary Bennett |
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/s/ Christine Houston |
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/s/ Emmanuel Pitsilis |
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/s/ Jacob Robbins |
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Jacob Robbins |
Exhibit 99.1
Powermers Smart Industries, Inc., a Global
Green-Powered Solutions Company, to be Publicly Listed through a Business Combination with OCA Acquisition Corp.
NEW YORK — December 22, 2023 — Powermers
Smart Industries, Inc. (“PSI” or the “Company”), a green-powered technology solutions and product platform company,
and OCA Acquisition Corp. (“OCAX”) (Nasdaq: OCAXU, OCAX and OCAXW), a special purpose acquisition company, have entered into
a definitive business combination agreement. Upon the closing of the transactions contemplated by the business combination agreement (the
“Business Combination”), the combined company is expected to operate as Powermers Smart Industries, Inc. and its common stock
is expected to be listed on Nasdaq under the symbol PSII.
PSI is positioning itself with modern engineering
and fleet management solutions to transform the commercial transportation and industrial equipment industries on a global scale. PSI has
built an ecosystem of partners, with a large and growing fulfillment capacity, that leverages platform-based solutions to shorten R&D
cycles, reduce capital expenditure requirements, and accelerate commercialization.
“Our journey has resulted in a business
combination with a premier partner that positions Powermers to accelerate its growth story. With PSI’s talented team and market
interest, this transaction is a meaningful step to realize the power of our business model, which is designed to help improve the carbon
footprint of the commercial transportation and industrial equipment sector globally,” commented Christopher Thorne, Chairman and
Chief Executive Officer of Powermers Smart Industries, Inc.
PSI Investment Highlights
Differentiated Approach to Address a Global
Problem: Greenhouse gas (“GHG”) emissions are a massive global problem. The commercial transportation and industrial equipment
industries collectively account for approximately 60% of GHG emissions from the transportation sector. PSI’s vision is to use its
partner ecosystem to help enable a world where sustainable transportation and industrial equipment are the norm, empowering its customers
with conscious choices for a healthier planet.
Comprehensive Suite of Fleet Management and
Related Service Offerings as a Solutions Integrator: PSI forms partnerships with leading companies across the value chain to provide
customers access to flexible funding and a wide range of green equipment technology solutions and service options. Business offerings
are expected to include equipment, green energy solutions, logistics data services, financial services, marketplaces, and carbon credit
realization.
Positioned with a Wide Range of Green Energy
Equipment Products: PSI integrates various power systems into commercial vehicles and industrial equipment and accelerates their commercialization
by leveraging its extensive partnerships with specialty vehicle manufacturers, battery manufacturers, financial institutions, and well-established
distributors and dealerships. The product portfolios of PSI’s industry partners include logistics vehicles, heavy hauling vehicles
for the construction and mining industries, light-duty trucks, micro trucks, forklifts, and agricultural equipment.
Multiple Levers for Growth: In addition
to its sales of commercial transportation and industrial equipment, PSI aims to generate revenues from multiple sources by creating a
market in the green energy ecosystem, including energy platform solutions, logistics data services, financial supply chain services, marketplaces,
and carbon credit solutions. PSI’s portfolio of intellectual property assets includes
patents representing fundamental technology advancements for improving safety and performance for
lithium-ion batteries and other energy storage devices.
Revenue-Generative Business Model: PSI’s
innovative business model enables efficient customer acquisition and interlocks diverse and recurring sources of revenues from its end-to-end
product and service offerings. PSI’s ecosystem of partners with a large and growing fulfillment capacity leverages platform-based
solutions that will position PSI to realize shorter R&D cycles, reduced capital expenditure requirements, and accelerated commercialization.
PSI has demonstrated the ability to convert customer relationships into realized revenues. As PSI expands its current customer footprint
and executes its growth strategies, PSI is expected to continue generating significant growth in 2024 as deliveries accelerate.
Experienced and Purpose-driven Leadership Team:
PSI is led by an experienced and cohesive leadership team with deep industry knowledge and a track record of driving scale and sustainable
growth. Matching purpose with profit, the team is focused on implementing a plan aimed to create value for all the Company’s stakeholders
by helping enable and lead the world towards a greener energy future.
“We are excited to partner with Chris and
his team at PSI to expand the company’s business across North America, Asia, and other international markets. The renewable and
environmental services sector has been one of our key target areas. Since the listing of OCAX, we have sought to identify opportunities
to leverage Olympus Capital Asia’s platform and network in Asia. As an innovative integrator of technologies and solutions that
seeks to contribute to the reduction of greenhouse gas emissions, PSI is a perfect fit with our investment priorities. We look forward
to supporting management in further expanding its joint venture partnership network and acquisition efforts across multiple markets,”
said David Shen, President and Chief Executive Officer of OCAX.
Transaction Terms
At the closing of the
Business Combination, the combined company is expected to have a pro forma equity value of approximately $2 billion. All existing PSI
stockholders will roll 100% of their equity into the combined entity. Each share of common stock of OCAX will be converted into one share
of common stock of the post-Business Combination company upon closing of the transaction.
Concurrently with the
execution of the business combination agreement, an investor with a majority economic, non-voting interest in OCAX’s sponsor, OCA
Acquisition Holdings LLC (the “Sponsor”), committed to make an investment of up to $8 million into PSI pursuant to convertible
promissory notes prior to the closing of the Business Combination, and the Sponsor committed to make an additional PIPE investment of
$2 million.
OCAX’s
and PSI’s respective boards of directors have approved the Business Combination, which
is expected to close in 2024, subject to regulatory and stockholder approvals.
For
additional information about the terms of the Business Combination, including an investor presentation, please see Current Report on Form
8-K, which will be filed today with the Securities and Exchange Commission (“SEC”) by OCAX. Additional information about the
Business Combination will be provided in the registration statement on Form S-4 (as may be amended from time to time, the “Registration
Statement”) to be filed with the SEC by PSI relating to the Business Combination.
Advisors
Cohen & Company Capital Markets, a division
of J.V.B. Financial Group, LLC, is serving as exclusive financial advisor and exclusive capital markets advisor to PSI. Graubard Miller,
PAG Law PLLC, and Paul Hastings LLP are serving as legal counsels to PSI. Kirkland & Ellis LLP is serving as legal counsel to OCAX,
and Han Kun Law Offices are serving as Chinese legal counsel to OCAX.
About Powermers Smart Industries, Inc.
Powermers
Smart Industries, Inc. is a green-powered innovator at the intersection of modern engineering, fleet management solutions, and product
platforms for the commercial transportation and industrial equipment sectors. PSI’s revenue-generative
business model interlocks diverse offerings, including equipment sales, energy solutions, logistics data services, financial services,
marketplaces, and carbon credit solutions. PSI’s portfolio of intellectual property assets includes patents representing fundamental
technology advancements for improving safety and performance for lithium-ion batteries and other energy storage devices. PSI
is headquartered in New York City and has global reach with offices in Asia and Europe. Connect with us at www.powermers.com.
About OCA Acquisition Corp.
OCA Acquisition Corp. is a special purpose acquisition
company incorporated for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization
or similar business combination with one or more businesses. The managing member of the Sponsor is Olympus Capital Asia V, L.P., the fifth
pan-Asia private equity fund advised by Olympus Capital Asia, one of the longest standing middle market private equity firms in Asia with
a 20+ year history of investing in the region. For more information about OCAX, visit www.ocaacquisition.com.
Additional Information and Where to Find It
In connection with the Business Combination, PSI
intends to file the Registration Statement, which will include a preliminary proxy statement of OCAX and a preliminary prospectus of PSI
relating to the securities of PSI to be issued in connection with the Business Combination, with the SEC. After the Registration Statement
is declared effective, OCAX will mail a definitive proxy statement relating to the Business Combination and other relevant documents to
its stockholders. The Registration Statement, including the proxy statement/prospectus contained therein, when declared effective by the
SEC, will contain important information about the Business Combination and the other matters to be voted upon at a meeting of OCAX’s
stockholders to be held to approve the Business Combination (and related matters). This communication is not a substitute for the Registration
Statement, the definitive proxy statement/prospectus or any other document that OCAX will send to its stockholders in connection with
the Business Combination. This press release does not contain all the information that should be considered concerning the Business Combination
and other matters and is not intended to provide the basis for any investment decision or any other decision in respect of such matters.
OCAX and PSI may also file other documents with the SEC regarding the Business Combination. Investors and security holders of OCAX are
advised to read, when available, the proxy statement/prospectus in connection with OCAX’s solicitation of proxies for its special
meetings of stockholders to be held to approve the Business Combination (and related matters) and other documents filed in connection
with the Business Combination, as these materials will contain important information about PSI, OCAX and the Business Combination.
When available, the definitive proxy statement
and other relevant materials for the Business Combination will be mailed to stockholders of OCAX as of a record date to be established
for voting on the Business Combination. OCAX stockholders will also be able to obtain copies of the preliminary proxy statement/prospectus,
the definitive proxy statement/prospectus and other documents filed or that will be filed with the SEC by OCAX through the website maintained
by the SEC at www.sec.gov, or by directing a request to OCA Acquisition Corp., 1345 Avenue of the Americas, 33rd Floor, New York, NY 10105
or by telephone at (212) 201-8533.
Participants in Solicitation
OCAX, PSI and their respective directors and officers
may be deemed participants in the solicitation of proxies of stockholders of OCAX in connection with the Business Combination. OCAX security
holders and other interested persons may obtain, without charge, more detailed information regarding the directors and officers of OCAX.
A description of their interests in OCAX is contained in OCAX’s final prospectus related to its initial public offering, dated January
19, 2021, and in OCAX’s subsequent filings with the SEC. Information regarding the persons who may, under SEC rules, be deemed participants
in the solicitation of proxies of OCAX security holders in connection with the Business Combination and other matters to be voted upon
at the special meetings of stockholders of OCAX will be set forth in the Registration Statement for the Business Combination when available.
Additional information regarding the interests of participants in the solicitation of proxies in connection with the Business Combination
will be included in the Registration Statement that PSI intends to file with the SEC. You may obtain free copies of these documents as
described in the preceding paragraph.
INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN
HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS
OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
No Offer or Solicitation
This communication relates to a proposed business
combination between PSI and OCAX. This press release does not constitute an offer to sell or exchange, or the solicitation of an offer
to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This communication
does not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction.
Forward-Looking Statements
Certain statements contained in this press release
that are not historical facts are forward-looking statements. Forward-looking statements are often accompanied by words such as “believe,”
“may”, “will”, “estimate”, “continue”, “expect”, “intend”, “should”,
“plan”, “forecast”, “potential”, “seek”, “future”, “look ahead”,
“target”, “design”, “develop”, “aim” and similar expressions to predict or indicate future
events or trends, although not all forward-looking statements contain these words. Forward-looking statements generally relate to future
events or PSI’s or OCAX’s future financial or operating performance, including possible or assumed future results of operations,
business strategies, debt levels, competitive position, industry environment, potential growth opportunities, the effects of regulation,
the satisfaction of closing conditions to the Business Combination and related transactions, the level of redemptions by OCAX’s
public stockholders and the timing of the completion of the Business Combination, including the anticipated closing date of the Business
Combination and the use of the cash proceeds therefrom. For example, statements regarding anticipated growth in the industry in which
PSI operates and anticipated growth in demand for PSI’s products, projections of PSI’s future financial results, including
future possible growth opportunities for PSI and other metrics are forward-looking statements. These forward-looking statements also include,
but are not limited to, statements regarding the use of the Company’s technology in pursuit of a carbon neutral future, the development
and utilization of the Company’s technologies in various sectors, licensing and other transactions with manufacturing partners and
other third parties, estimates and forecasts of other financial and performance indicators and predictions of market opportunities. These
statements are based on various assumptions (whether or not identified in this document) and the current expectations of PSI and OCAX
management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only
and are not intended to serve as and must not be relied on by any investor as a guarantee, an assurance, a prediction or a definitive
statement of fact or probability. Actual events and situations are difficult or impossible to predict and may differ from assumptions.
Many actual events and situations are beyond the control of PSI and OCAX.
These forward-looking statements are subject to
a variety of risks, uncertainties and other factors, including (i) the occurrence of any event, change or other circumstances that could
give rise to the termination of negotiations and any subsequent definitive agreements with respect to the Business Combination; (ii) the
outcome of any legal proceedings that may be instituted against OCAX, PSI or others following this announcement and any definitive agreements
with respect thereto; (iii) the inability to complete the Business Combination due to the failure to obtain approval of the stockholders
of OCAX and of PSI, to obtain financing to complete the Business Combination, or to satisfy other conditions to closing; (iv) changes
to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations
or as a condition to obtaining regulatory approval of the Business Combination; (v) the ability to meet stock exchange listing standards
in connection with, or following the consummation of, the Business Combination; (vi) the risk that the announcement and consummation of
the Business Combination disrupts current plans and operations of PSI; (vii) the ability to recognize the anticipated benefits of the
Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage
growth profitably, maintain key relationships and retain its management and key employees: (viii) costs related to the Business Combination;
(ix) changes in applicable laws or regulations; (x) the inability to develop or monetize the Company’s technologies in a timely
or successful manner;(xi) the Company’s ability to enter into licensing, manufacturing and other agreements with third parties on
satisfactory terms; (xii) the changes in domestic and foreign business, market, financial, political, and legal conditions; (xiii) risks
related to domestic and international political and macroeconomic uncertainty, including the conflicts between Russia and Ukraine and
Israel and Hamas; (xiv) the amount of redemption requests made by OCAX’s public stockholders; (xv) risks related to the launch of
the PSI business and the timing of expected business milestones; (xvi) the impact of competition on PSI future business; and (xvii) other
risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking
Statements” in OCAX’s final prospectus relating to its initial public offering, dated January 19, 2021, OCAX’s Annual
Report on Form 10-K for the year ended December 31, 2022 and subsequent Quarterly Reports on Form 10-Q, in each case, under the heading
“Risk Factors,” or in other documents to be filed by OCAX and PSI with the SEC, including the proxy statement/prospectus.
There may be additional risks that neither the Company nor OCAX presently know or that the Company and OCAX currently believe are immaterial
that could also cause actual results to differ from those contained in the forward-looking statements. If any of these risks become a
reality, or if our assumptions prove to be incorrect, the actual results may differ materially from the results implied by these forward-looking
statements. In addition, forward-looking statements reflect the expectations, plans, or forecasts of future events and opinions of PSI
or OCAX, as applicable, on the date of this press release. You should not place undue reliance on forward-looking statements, which speak
only as of the date they are made. PSI and OCAX expect that subsequent events and developments will cause the assessments of PSI and OCAX
to change. Neither the Company nor OCAX undertakes any duty to update or revise these forward-looking statements or to inform the viewer
of any matters of which any of them becomes aware of which may affect any matter referred to in this press release. If OCAX and PSI do
update one or more forward looking statements, no inference should be drawn that OCAX and PSI will make additional updates thereto or
with respect to other forward-looking statements. These forward-looking statements should not be relied upon as representing the OCAX’s
and PSI’s assessments as of any date subsequent to the date of this filing. You should consult with their professional advisors
to make their own determinations and should not rely on the forward-looking statements in this press release.
Contacts
Powermers Smart Industries, Inc.
For Media & Investors:
contact@powermers.com
OCA Acquisition Corp.
For Media & Investors:
Jeffrey Glat, Chief Financial Officer
Jglat@ocaacquisition.com
5
OCA Acquisition (NASDAQ:OCAXU)
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OCA Acquisition (NASDAQ:OCAXU)
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