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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 10-Q/A

(Amendment No. 1)

 

(Mark One)

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 31, 2022

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from to

Commission File Number: 001-36247

 

Meta Materials Inc.

(Exact Name of Registrant as Specified in its Charter)

 

 

Nevada

74-3237581

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

 

 

1 Research Drive

Dartmouth, Nova Scotia

B2Y 4M9

(Address of principal executive offices)

(Zip Code)

Registrant’s telephone number, including area code: (902) 482-5729

 

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

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

 

Common Stock, par value $0.001 per share

MMAT

Nasdaq Capital Market

 

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

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

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

 

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

 

 

Emerging growth company

 

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

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

As of May 9, 2022, the registrant had 296,614,994 shares of common stock, $0.001 par value per share, outstanding.

Explanatory Note

 

 


 

Meta Materials Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-Q/A (this “Amendment”) to its Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission (the “SEC”) on May 10, 2022 (the “Original Form 10-Q”) solely to include Exhibit 10.1, Amended and Restated Stock Option Plan, and Exhibit 10.2, 2021 Equity Incentive Plan, in the exhibit index, and to file Exhibit 10.3, Form of Stock Option Agreement, Exhibit 10.4, Form of RSU Agreement, Exhibit 10.5, Stock Purchase Agreement, dated March 31, 2022, by and between the Company, on the one hand, and Dmitry Yarmolich and Dzianis Yarmolich, on the other hand, and new certifications under Section 302 of the Sarbanes-Oxley Act of 2002 (the “Act”) in accordance with Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended. Because no financial statements have been included in this Amendment, the certifications under Section 906 of the Act are not being filed with this Amendment. This Amendment does not reflect events occurring after the filing of the Original Form 10-Q on May 10, 2022 and therefore should be read in conjunction with the Original Form 10-Q and other filings with the SEC subsequent to the filing of the Original Form 10-Q.

 


 

Item 6. Exhibits

 

 

 

 

Incorporated by Reference

Exhibit
Number

 

Description

 

 

Form

 

Filing date

 

Filed Herewith

10.1+

Amended and Restated Stock Option Plan

 

S-8

 

August 26, 2021

 

 

10.2+

2021 Equity Incentive Plan

 

S-8

 

March 22, 2022

 

 

10.3+

Form of Stock Option Agreement

 

 

 

 

 

X

10.4+

Form of RSU Agreement

 

 

 

 

 

X

10.5

Stock Purchase Agreement, dated March 31, 2022, by and between Meta Materials Inc., on the one hand, and Dmitry Yarmolich and Dzianis Yarmolich, on the other hand

 

 

 

 

 

X

31.3

Certification of Principal Executive Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

X

31.4

Certification of Principal Financial Officer Pursuant to Rules 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

X

101.INS

Inline XBRL Instance Document – the instance document does not appear in the Interactive Data File because XBRL tags are embedded within the Inline XBRL document.

 

 

 

 

 

 

101.SCH

Inline XBRL Taxonomy Extension Schema Document

 

 

 

 

 

 

101.CAL

Inline XBRL Taxonomy Extension Calculation Linkbase Document

 

 

 

 

 

 

101.DEF

Inline XBRL Taxonomy Extension Definition Linkbase Document

 

 

 

 

 

 

101.LAB

Inline XBRL Taxonomy Extension Label Linkbase Document

 

 

 

 

 

 

101.PRE

Inline XBRL Taxonomy Extension Presentation Linkbase Document

 

 

 

 

 

 

104

Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

 

 

 

 

 

+ Indicates management contract or compensatory plan.

2


 

SIGNATURES

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.

 

 

 

Meta Materials Inc.

 

 

 

 

Dated: June 1, 2022

 

By:

/s/ Kenneth Rice

 

 

 

 

Kenneth Rice

 

 

 

Chief Financial Officer and Chief Operating Officer

 

 

 

(Principal Financial and Accounting Officer)

 

3


 

Exhibit 10.3

 

Meta Materials Inc.

2021 EQUITY INCENTIVE PLAN

STOCK OPTION AGREEMENT

Unless otherwise defined herein, the terms defined in the Meta Materials Inc. 2021 Equity Incentive Plan (the “Plan”) will have the same defined meanings in this Stock Option Agreement, which includes the Notice of Stock Option Grant (the “Notice of Grant”), the Terms and Conditions of Stock Option Grant attached hereto as Exhibit A, and all appendices and exhibits attached thereto (all together, the “Option Agreement”).

NOTICE OF STOCK OPTION GRANT

Participant:

Address:

The undersigned Participant has been granted an Option to purchase Common Stock of Meta Materials Inc. (the “Company”), subject to the terms and conditions of the Plan and this Option Agreement, as follows:

Grant Number:

Date of Grant:

Vesting Commencement Date:

Number of Shares Granted:

Exercise Price per Share: $

Total Exercise Price: $

Type of Option: ___ Incentive Stock Option

___ Nonstatutory Stock Option

Term/Expiration Date:

Vesting Schedule:

Subject to accelerated vesting as set forth below or in the Plan, this Option will be exercisable, in whole or in part, in accordance with the following schedule:

[Insert Vesting Schedule]

 


 

[Notwithstanding the foregoing, in the event of a Change in Control (as such term is defined in the Plan), all outstanding unvested Shares subject to the Option shall become fully vested and exercisable for the remainder of their Term, and Participant will fully vest in and have the right to exercise all of the Shares underlying the Option, including those Shares which would not otherwise be vested or exercisable, provided the Participant continues to be a Service Provider through the date of such Change in Control.]

Termination Period:

This Option will be exercisable for [three (3) months] after Participant ceases to be a Service Provider, unless such termination is due to Participant’s death or Disability, in which case this Option will be exercisable for [twelve (12) months] after Participant ceases to be a Service Provider. Notwithstanding the foregoing sentence, in no event may this Option be exercised after the Term/Expiration Date as provided above, and this Option may be subject to earlier termination as provided in Section 15 of the Plan.

By Participant’s signature and the signature of the representative of the Company below, Participant and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement, including the Terms and Conditions of Stock Option Grant, attached hereto as Exhibit A, all of which are made a part of this document. Participant acknowledges receipt of a copy of the Plan. Participant has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement, and fully understands all provisions of the Plan and this Option Agreement. Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and the Option Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

 

PARTICIPANT Meta Materials Inc.

 

Signature Signature

____________________________________

Print Name Print Name

 

Title

 

EXHIBIT A

TERMS AND CONDITIONS OF STOCK OPTION GRANT

1.
Grant of Option. The Company hereby grants to the individual (the “Participant”) named in the Notice of Stock Option Grant (the “Notice of Grant”) an option (the “Option”) to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per Share set forth in the Notice of Grant (the “Exercise Price”), subject to all of the terms and conditions in

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this Option Agreement and the Plan, which is incorporated herein by reference. Subject to Section 20(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Option Agreement, the terms and conditions of the Plan will prevail.
(a)
For U.S. taxpayers, the Option will be designated as either an Incentive Stock Option (“ISO”) or a Nonstatutory Stock Option (“NSO”). If designated in the Notice of Grant as an ISO, this Option is intended to qualify as an ISO under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”). However, if this Option is intended to be an ISO, to the extent that it exceeds the $100,000 rule of Code Section 422(d) it will be treated as an NSO. Further, if for any reason this Option (or portion thereof) will not qualify as an ISO, then, to the extent of such nonqualification, such Option (or portion thereof) shall be regarded as a NSO granted under the Plan. In no event will the Administrator, the Company or any Parent or Subsidiary or any of their respective employees or directors have any liability to Participant (or any other person) due to the failure of the Option to qualify for any reason as an ISO.
(b)
For non-U.S. taxpayers, the Option will be designated as an NSO.
2.
Vesting Schedule. Except as provided in Section ‎3, the Option awarded by this Option Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant. Shares scheduled to vest on a certain date or upon the occurrence of a certain condition will not vest in Participant in accordance with any of the provisions of this Option Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs.
3.
Administrator Discretion. The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Option at any time, subject to the terms of the Plan. If so accelerated, such Option will be considered as having vested as of the date specified by the Administrator.
4.
Exercise of Option.
(a)
Right to Exercise. This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement.
(b)
Method of Exercise. This Option is exercisable by delivery of an exercise notice (the “Exercise Notice”) in the form attached as Exhibit A or in a manner and pursuant to such procedures as the Administrator may determine, which will state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the “Exercised Shares”), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice will be completed by Participant and delivered to the Company. The Exercise Notice will be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares together and any Tax Obligations (as defined in Section 6(a)). This Option will be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by the aggregate Exercise Price.
5.
Method of Payment. Payment of the aggregate Exercise Price will be by any of the following, or a combination thereof, at the election of Participant:

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(a)
cash;
(b)
check;
(c)
consideration received by the Company under a formal cashless exercise program adopted by the Company in connection with the Plan; or
(d)
if Participant is a U.S. employee, surrender of other Shares which have a fair market value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares and that are owned free and clear of any liens, claims, encumbrances, or security interests, provided that accepting such Shares, in the sole discretion of the Administrator, will not result in any adverse accounting consequences to the Company.
6.
Tax Obligations.
(a)
Participant’s Responsibility. Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”) or Parent or Subsidiary to which Participant is providing services (together, the Company, Employer and/or Parent or Subsidiary to which the Participant is providing services, the “Service Recipient”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Option, including, without limitation, (i) all federal, state, local, and foreign taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation and any applicable foreign social insurance contributions) that are required to be withheld by the Company or the Service Recipient or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, (ii) the Participant’s and, to the extent required by the Company (or Service Recipient), the Company’s (or Service Recipient’s) fringe benefit tax liability, if any, associated with the grant, vesting, or exercise of the Option or sale of Shares, and (iii) any other Company (or Service Recipient) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Option (or exercise thereof or issuance of Shares thereunder) (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Service Recipient. Participant further acknowledges that the Company and/or the Service Recipient (A) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Option, including, but not limited to, the grant, vesting or exercise of the Option, the subsequent sale of Shares acquired pursuant to such exercise and the receipt of any dividends or other distributions, and (B) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result. Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Service Recipient (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.

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(b)
Tax Withholding. When the Option is exercised, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer. If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction. Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Service Recipient shall withhold the amount required to be withheld for the payment of Tax Obligations. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by (i) paying cash (in U.S. dolloars), (ii) electing to have the Company withhold otherwise deliverable Shares having a fair market value equal to the minimum amount that is necessary to meet the withholding requirement for such Tax Obligations (or such greater amount as Participant may elect if permitted by the Administrator, if such greater amount would not result in adverse financial accounting consequences), (iii) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Service Recipient, (iv) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations, or (v) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise and on Participant’s behalf pursuant to this authorization) equal to the minimum amount that is necessary to meet the withholding requirement for such Tax Obligations (or such greater amount as Participant may elect if permitted by the Administrator, if such greater amount would not result in adverse financial accounting consequences). Until determined otherwise by the Administrator, the method set forth in clause (v) will be the method by which such Tax Obligations are satisfied. Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Service Recipient (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the Option exercise, Participant acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver the Shares if such amounts are not delivered at the time of exercise.
(c)
Company’s Obligation to Deliver Shares. For clarification purposes, in no event will the Company issue Participant any Shares unless and until arrangements satisfactory to the Administrator have been made for the payment of Participant’s Tax Obligations. If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the Option exercise, Participant acknowledges and agrees that the Company may refuse to honor the exercise and refuse to issue or deliver the Shares.
(d)
Notice of Disqualifying Disposition of ISO Shares. If the Option granted to Participant herein is an ISO, and if Participant sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (i) the date two (2) years after the Date of Grant, or (ii) the date one (1) year after the date of exercise, Participant will immediately notify the Company in writing of such disposition. Participant agrees that Participant may be subject to income tax withholding by the Company on the compensation income recognized by Participant.
(e)
Code Section 409A. Under Code Section 409A, a stock right (such as the Option) that vests after December 31, 2004 (or that vested on or prior to such date but which was

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materially modified after October 3, 2004) that was granted with a per share exercise price that is determined by the Internal Revenue Service (the “IRS”) to be less than the fair market value of an underlying share on the date of grant (a “discount option”) may be considered “deferred compensation.” A stock right that is a “discount option” may result in (i) income recognition by the recipient of the stock right prior to the exercise of the stock right, (ii) an additional twenty percent (20%) federal income tax, and (iii) potential penalty and interest charges. The “discount option” may also result in additional state income, penalty and interest tax to the recipient of the stock right. Participant acknowledges that the Company cannot and has not guaranteed that the IRS will agree that the per Share exercise price of this Option equals or exceeds the fair market value of a Share on the date of grant in a later examination. Participant agrees that if the IRS determines that the Option was granted with a per Share exercise price that was less than the fair market value of a Share on the date of grant, Participant shall be solely responsible for Participant’s costs related to such a determination.
7.
Rights as Stockholder. Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book entry form) will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant (including through electronic delivery to a brokerage account). After such issuance, recordation, and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.
8.
No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER, WHICH UNLESS PROVIDED OTHERWISE UNDER APPLICABLE LAW IS AT THE WILL OF THE COMPANY (OR THE SERVICE RECIPIENT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE SERVICE RECIPIENT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER, SUBJECT TO APPLICABLE LAW, WHICH TERMINATION, UNLESS PROVIDED OTHERWISE UNDER APPLICABLE LAW, MAY BE AT ANY TIME, WITH OR WITHOUT CAUSE.
9.
Non-Transferability of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Participant only by Participant.
10.
No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant

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is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
11.
Address for Notices. Any notice to be given to the Company under the terms of this Option Agreement will be addressed to the Company at Meta Materials Inc., 1 Research Drive, Dartmouth, Nova Scotia, Canada B27 4M9, or at such other address as the Company may hereafter designate in writing.
12.
Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to the Option (including, without limitation, prospectuses required by the Securities and Exchange Commission) awarded under the Plan or future options that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant also agrees that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify Participant by electronic means.
13.
No Waiver. Either party’s failure to enforce any provision or provisions of this Option Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this Option Agreement. The rights granted both parties herein are cumulative and shall not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.
14.
Successors and Assigns. The Company may assign any of its rights under this Option Agreement to single or multiple assignees, and this Option Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Option Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns. The rights and obligations of Participant under this Option Agreement may only be assigned with the prior written consent of the Company.
15.
Additional Conditions to Issuance of Stock. If at any time the Company will determine, in its discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under any state, federal or foreign law, the tax code and related regulations or the consent or approval of any other governmental regulatory authority is necessary or desirable as a condition to the purchase by, or issuance of Shares to, Participant (or his or her estate) hereunder, such purchase or issuance will not occur unless and until such listing, registration, qualification, rule compliance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any such state, federal or foreign law or securities exchange and to obtain any such consent or approval of any such governmental authority or securities exchange. Assuming such compliance, for income tax purposes the Exercised Shares will be considered transferred to Participant on the date the Option is exercised with respect to such Exercised Shares.
16.
Interpretation. The Administrator will have the power to interpret the Plan and this Option Agreement and to adopt such rules for the administration, interpretation and application of

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the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Shares subject to the Option have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. Neither the Administrator nor any person acting on behalf of the Administrator will be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Option Agreement.
17.
Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Option Agreement.
18.
Agreement Severable. In the event that any provision in this Option Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Option Agreement.
19.
Amendment, Suspension or Termination of the Plan. By accepting this Option, Participant expressly warrants that he or she has received an Option under the Plan, and has received, read, and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.
20.
Modifications to the Agreement. This Option Agreement constitutes the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Option Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Option Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Option Agreement, the Company reserves the right to revise this Option Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Code Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A of the Code in connection with the Option.
21.
Governing Law and Venue. This Option Agreement will be governed by the laws of the State of Nevada, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Option or this Option Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Nevada and agree that such litigation will be conducted in the courts of Nevada or the federal courts for the United States for the District of Nevada and no other courts, where this Option is made and/or to be performed.
22.
Entire Agreement. The Plan is incorporated herein by reference. The Plan and this Option Agreement (including the appendices and exhibits referenced herein) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, and may not be modified adversely to the Participant’s interest except by means of a writing signed by the Company and Participant.

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23.
Tax Consequences. Participant has reviewed with his or her own tax, legal, and financial advisors the U.S. federal, state, local and non-U.S. tax consequences of this investment and the transactions contemplated by this Option Agreement. With respect to such matters, Participant relies solely on such advisors and not on any statements or representations of the Company, any Subsidiary of the Company, or Service Recipient or any of their agents, written or oral. Participant understands that Participant (and not the Company, any Subsidiary of the Company, or Service Recipient) shall be responsible for Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Option Agreement.

 

 

EXHIBIT B

Meta Materials Inc.

2021 EQUITY INCENTIVE PLAN

EXERCISE NOTICE

Meta Materials Inc.

1 Research Drive

Dartmouth, Nova Scotia, Canada B27 4M9

 

Attention: Stock Administration

 

1.
Exercise of Option. Effective as of today, ________________, _____, the undersigned (“Purchaser”) hereby elects to purchase ______________ shares (the “Shares”) of the Common Stock of Meta Materials Inc. (the “Company”) under and pursuant to the 2021 Equity Incentive Plan (the “Plan”) and the Stock Option Agreement, dated ________ and including the Notice of Grant, the Terms and Conditions of Stock Option Grant, and exhibits attached thereto (the “Option Agreement”). The purchase price for the Shares will be $_____________, as required by the Option Agreement.
2.
Delivery of Payment. Purchaser herewith delivers to the Company the full purchase price of the Shares and any Tax Obligations (as defined in Section 6(a) of the Option Agreement) to be paid in connection with the exercise of the Option, as provided in the Option Agreement.
3.
Representations of Purchaser. Purchaser acknowledges that Purchaser has received, read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their terms and conditions.
4.
Rights as Stockholder. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares subject to the Option, notwithstanding the exercise of the Option. The Shares so acquired will be issued to Purchaser as soon as practicable after exercise of the Option. No adjustment will

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be made for a dividend or other right for which the record date is prior to the date of issuance, except as provided in Section 15 of the Plan.
5.
Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax consequences as a result of Purchaser’s purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice.
6.
Entire Agreement; Governing Law. The Plan and Option Agreement are incorporated herein by reference. This Exercise Notice, the Plan and the Option Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser with respect to the subject matter hereof, and may not be modified adversely to the Purchaser’s interest except by means of a writing signed by the Company and Purchaser. This Option Agreement is governed by the internal substantive laws, but not the choice of law rules, of Nevada.

Submitted by: Accepted by:

PURCHASER Meta Materials Inc.

 

 

 

Signature Signature

 

Print Name Print Name

Address:

Title

 

 

 

 

 

 

Date Received

 

- 10 -


 

Exhibit 10.4

Meta Materials Inc.

2021 EQUITY INCENTIVE PLAN

RESTRICTED STOCK UNIT AGREEMENT

Unless otherwise defined herein, the terms defined in the Meta Materials Inc. 2021 Equity Incentive Plan (the “Plan”) will have the same defined meanings in this Restricted Stock Unit Agreement, which includes the Notice of Restricted Stock Unit Grant (the “Notice of Grant”), Terms and Conditions of Restricted Stock Unit Grant attached hereto as Exhibit A, and all appendices and exhibits attached thereto (all together, the “Award Agreement”).

NOTICE OF RESTRICTED STOCK UNIT GRANT

Participant Name:

Address:

The undersigned Participant has been granted the right to receive an Award of Restricted Stock Units, subject to the terms and conditions of the Plan and this Award Agreement, as follows:

Grant Number:

Date of Grant:

Vesting Commencement Date:

Number of Restricted Stock Units:

Vesting Schedule:

Subject to any acceleration provisions contained in the Plan or set forth below, the Restricted Stock Units will vest in accordance with the following schedule:

[Insert Vesting Schedule]

In the event Participant ceases to be a Service Provider for any or no reason before Participant vests in the Restricted Stock Units, the Restricted Stock Units and Participant’s right to acquire any Shares hereunder will immediately terminate.

 

[Notwithstanding the foregoing, in the event of a Change in Control (as such term is defined in the Plan), all outstanding unvested Restricted Stock Units shall become fully vested, including those Restricted Stock Units which would not otherwise be vested, and all restrictions on Restricted Stock Units will lapse, provided the Participant continues to be a Service Provider through the date of such Change in Control.]

By Participant’s signature and the signature of the representative of the Company below, Participant and the Company agree that this Award of Restricted Stock Units is granted under and

 


 

governed by the terms and conditions of the Plan and this Award Agreement, including the Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit A, all of which are made a part of this document. Participant acknowledges receipt of a copy of the Plan. Participant has reviewed the Plan and this Award Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Award Agreement, and fully understands all provisions of the Plan and this Award Agreement. Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and the Award Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.

 

PARTICIPANT: Meta Materials Inc.

 

 

Signature Signature

 

Print Name Print Name

 

Title

 

EXHIBIT A

TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT

1.
Grant of Restricted Stock Units. The Company hereby grants to the individual (the “Participant”) named in the Notice of Restricted Stock Unit Grant (the “Notice of Grant”) under the Plan an Award of Restricted Stock Units, subject to all of the terms and conditions in this Award Agreement and the Plan, which is incorporated herein by reference. Subject to Section 20(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and this Award Agreement, the terms and conditions of the Plan shall prevail.
2.
Company’s Obligation to Pay. Each Restricted Stock Unit represents the right to receive a Share on the date it vests. Unless and until the Restricted Stock Units will have vested in the manner set forth in Section 3 or 4, Participant will have no right to payment of any such Restricted Stock Units. Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Unit will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
3.
Vesting Schedule. Except as provided in Section 4, and subject to Section 5, the Restricted Stock Units awarded by this Award Agreement will vest in accordance with the vesting schedule set forth in the Notice of Grant, subject to Participant continuing to be a Service Provider through each applicable vesting date.
4.
Payment after Vesting.

- 2 -


 

(a)
General Rule. Subject to Section 7, any Restricted Stock Units that vest will be paid to Participant (or in the event of Participant’s death, to his or her properly designated beneficiary or estate) in whole Shares. Subject to the provisions of Section 4(b), such vested Restricted Stock Units shall be paid in whole Shares as soon as practicable after vesting, but in each such case within sixty (60) days following the vesting date. In no event will Participant be permitted, directly or indirectly, to specify the taxable year of payment of any Restricted Stock Units payable under this Award Agreement.
(b)
Acceleration.
(i)
Discretionary Acceleration. The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time, subject to the terms of the Plan. If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator. If Participant is a U.S. taxpayer, the payment of Shares vesting pursuant to this Section 4(b) shall in all cases be paid at a time or in a manner that is exempt from, or complies with, Section 409A. The prior sentence may be superseded in a future agreement or amendment to this Award Agreement only by direct and specific reference to such sentence.
(ii)
Notwithstanding anything in the Plan or this Award Agreement or any other agreement (whether entered into before, on or after the Date of Grant), if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company), other than due to Participant’s death, and if (x) Participant is a U.S. taxpayer and a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider, unless Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to Participant’s estate as soon as practicable following his or her death.
(c)
Section 409A. It is the intent of this Award Agreement that it and all payments and benefits to U.S. taxpayers hereunder be exempt from, or comply with, the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to be so exempt or so comply. Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). However, in no event will the Company or any of its Subsidiaries reimburse or indemnify Participant, or be otherwise responsible for, any taxes or costs, including penalties and interest, that may be imposed on Participant as a result of Section 409A. For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any final Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from time to time.

- 3 -


 

5.
Forfeiture Upon Termination as a Service Provider. Unless specifically provided otherwise in this Award Agreement or other written agreement between Participant and the Company or any of its Subsidiaries or Parents, as applicable, if Participant ceases to be a Service Provider for any or no reason, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and Participant will have no further rights thereunder.
6.
Death of Participant. Any distribution or delivery to be made to Participant under this Award Agreement will, if Participant is then deceased, be made to Participant’s designated beneficiary, or if no beneficiary survives Participant, the administrator or executor of Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.
7.
Tax Obligations
(a)
Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to the Award or such earlier time as any tax withholding obligations are due, the Company will have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant’s FICA obligation) required to be withheld with respect to the Award. The amount of the withholding requirement will be deemed to include any amount which the Administrator agrees may be withheld at the time the election is made, not to exceed the amount determined by using the maximum federal, state or local marginal income tax rates applicable to the Participant with respect to the Award on the date that the amount of tax to be withheld is to be determined.
(b)
Participant’s Responsibility; Company’s Obligation to Deliver Certificates. Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax‑related items related to the Award and legally applicable to Participant or deemed by the Company or the Employer in its discretion to be an appropriate charge to Participant even if legally applicable to the Company or the Employer (“Tax-Related Items”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer. Notwithstanding any contrary provision of this Award Agreement, no certificate representing the Shares will be issued to Participant, unless and until satisfactory arrangements (as determined by the Administrator) will have been made by Participant with respect to the Tax-Related Items. Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends and/or any dividend equivalents; and (ii) do not commit to and are under no obligation to structure the terms of the Award or any aspect of the Award to reduce or eliminate Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if Participant is subject to Tax-Related Items in more than one jurisdiction, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

- 4 -


 

(c)
Tax Withholding Arrangements. When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer. If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction. Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Service Recipient shall withhold the amount required to be withheld for the payment of Tax Obligations. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by (i) paying cash (in U.S. dollars), (ii) electing to have the Company withhold otherwise deliverable Shares having a fair market value equal to the minimum amount that is necessary to meet the withholding requirement for such Tax Obligations (or such greater amount as Participant may elect if permitted by the Administrator, if such greater amount would not result in adverse financial accounting consequences), (iii) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the Company and/or the Service Recipient, (iv) delivering to the Company already vested and owned Shares having a fair market value equal to such Tax Obligations, or (v) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise and on Participant’s behalf pursuant to this authorization) equal to the minimum amount that is necessary to meet the withholding requirement for such Tax Obligations (or such greater amount as Participant may elect if permitted by the Administrator, if such greater amount would not result in adverse financial accounting consequences). Until determined otherwise by the Administrator, the method set forth in clause (v) will be the method by which such Tax Obligations are satisfied. Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Service Recipient (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and such Restricted Stock Units will be returned to the Company at no cost to the Company.
8.
Rights as Stockholder. Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book entry form) will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant (including through electronic delivery to a brokerage account). After such issuance, recordation, and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.
9.
No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER, WHICH UNLESS PROVIDED OTHERWISE UNDER APPLICABLE LAW IS AT THE WILL OF THE COMPANY (OR THE SERVICE RECIPIENT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS RESTRICTED STOCK UNIT AWARD OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER

- 5 -


 

ACKNOWLEDGES AND AGREES THAT THIS AWARD AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE SERVICE RECIPIENT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER, SUBJECT TO APPLICABLE LAW, WHICH TERMINATION, UNLESS PROVIDED OTHERWISE UNDER APPLICABLE LAW, MAY BE AT ANY TIME, WITH OR WITHOUT CAUSE.
10.
Grant is Not Transferable. Except to the limited extent provided in Section 6, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.
11.
No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares. Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
12.
Address for Notices. Any notice to be given to the Company under the terms of this Award Agreement will be addressed to the Company at Meta Materials Inc., 1 Research Drive, Dartmouth, Nova Scotia, Canada B27 4M9, or at such other address as the Company may hereafter designate in writing.
13.
Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to the Restricted Stock Units (including, without limitation, prospectuses required by the Securities and Exchange Commission) awarded under the Plan or future Restricted Stock Units that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means. Participant also agrees that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify Participant by electronic means.
14.
No Waiver. Either party’s failure to enforce any provision or provisions of the Award Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this Award Agreement. The rights granted both parties herein are cumulative and shall not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.

- 6 -


 

15.
Successors and Assigns. The Company may assign any of its rights under this Award Agreement to single or multiple assignees, and this Award Agreement shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this Award Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns. The rights and obligations of Participant under this Award Agreement may only be assigned with the prior written consent of the Company.
16.
Additional Conditions to Issuance of Stock. f at any time the Company will determine, in its discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under any state, federal or foreign law, the tax code and related regulations or the consent or approval of any other governmental regulatory authority is necessary or desirable as a condition to the purchase by, or issuance of Shares to, Participant (or his or her estate) hereunder, such purchase or issuance will not occur unless and until such listing, registration, qualification, rule compliance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any such state, federal or foreign law or securities exchange and to obtain any such consent or approval of any such governmental authority or securities exchange. Subject to the terms of the Award Agreement and the Plan, the Company shall not be required to issue any certificate or certificates for (or make any entry on the books of the Company or of a duly authorized transfer agent of the Company of) the Shares hereunder prior to the lapse of such reasonable period of time following the date of vesting of the Restricted Stock Units as the Administrator may establish from time to time for reasons of administrative convenience.
17.
Interpretation. The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. Neither the Administrator nor any person acting on behalf of the Administrator will be personally liable for any action, determination, or interpretation made in good faith with respect to the Plan or this Award Agreement.
18.
Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement.
19.
Agreement Severable. In the event that any provision in this Award Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Award Agreement.
20.
Amendment, Suspension or Termination of the Plan. By accepting this Award, Participant expressly warrants that he or she has received an Award of Restricted Stock Units under the Plan, and has received, read, and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Administrator at any time.

- 7 -


 

21.
Modifications to the Award Agreement. This Award Agreement constitutes the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Award Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Award Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection with this Award of Restricted Stock Units.
22.
Governing Law and Venue. This Award Agreement will be governed by the laws of the State of Nevada, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under these Restricted Stock Units or this Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Nevada and agree that such litigation will be conducted in the courts of Nevada or the federal courts for the United States for the District of Nevada and no other courts, where this Award Agreement is made and/or to be performed.
23.
Entire Agreement. The Plan is incorporated herein by reference. The Plan and this Award Agreement (including the appendices and exhibits referenced herein) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, and may not be modified adversely to the Participant’s interest except by means of a writing signed by the Company and Participant.
24.
Tax Consequences. Participant has reviewed with his or her own tax, legal, and financial advisors the U.S. federal, state, local and non-U.S. tax consequences of this investment and the transactions contemplated by this Award Agreement. With respect to such matters, Participant relies solely on such advisors and not on any statements or representations of the Company, any Subsidiary of the Company, or Service Recipient or any of their agents, written or oral. Participant understands that Participant (and not the Company, any Subsidiary of the Company, or Service Recipient) shall be responsible for Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Award Agreement.

 

- 8 -


 

 

 

 

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Exhibit 10.5

 

 

 

 

Dated 2022

AGREEMENT FOR THE SALE AND PURCHASE OF THE ENTIRE ISSUED SHARE CAPITAL OF PLASMA APP LTD.

 

between

(1) Dmitry Yarmolich and Dzianis Yarmolich

and

(2) Meta Materials Inc.

 

 

 

 

Contents

 

Clause

 

Page

 

1

Definitions and interpretation

2

2

ACQUISITION OF THE SALE SHARES

8

3

CONSIDERATION

8

4

CONSIDERATION SHARES

8

5

COMPLETION

9

6

Retention

9

7

WARRANTIES AND INDEMNITIES

11

8

SELLER LIMITATIONS

12

 

Hill Dickinson LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

FILENAME \* MERGEFORMAT Dragon - SPA (FINAL 31.03.2022)(172282750.18)


 

 

 

 

img161678197_0.jpg 

 

9

TAX

12

10

FURTHER UNDERTAKINGS AND OBLIGATIONS OF THE SELLERS

12

11

Confidentiality

17

12

Announcements

17

13

Assignment and successors

18

14

Third party rights

18

15

Notices

19

16

General

20

17

Governing law and jurisdiction

21

Schedule 1 - The Sellers

22

Schedule 2 - The Company

23

Schedule 3 - Completion

25

Schedule 4 - General Warranties

27

Schedule 5 - Limitations on the Sellers’ liability

39

Schedule 6 - Tax Schedule

43

Part 2 - Tax Warranties

46

Part 3 - Tax Covenant

54

Part 4 - Limitations and Procedure

56

Schedule 7 - Intellectual Property

62

Part 1 - Registered IPR

62

Part 2 – Unregistered Company Intellectual Property

63

Part 3 – Intellectual Property Agreements

63

Part 4 - Domain Names

63

 

 

 

 

Agreed Form Documents

Disclosure Letter

Disclosure Documents

Disclosed Information Index

Letters of resignation (officers)

Service Agreement

Completion Balance Sheet

Selling Stockholder Questionnaires

 

Hill Dickinson LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

FILENAME \* MERGEFORMAT Dragon - SPA (FINAL 31.03.2022)(172282750.18)


 

 

 

 

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THIS AGREEMENT is dated March 31, 2022

PARTIES

(1) DMITRY YARMOLICH of 25 Galley Field, Abingdon OX14 3RU and DZIANIS YARMOLICH of 82 Belgrave Court, 36 Westferry Circus, London E14 8RJ (together, the Sellers, and each a Seller); and

(2) META MATERIALS INC., a corporation incorporated and registered in the US state of Nevada with entity number E0768622007-2 and whose principal place of business is at 1 Research Drive, Dartmouth, Nova Scotia, Canada, B2Y 4M9 (Buyer).

BACKGROUND

(A) The Company is a private company limited by shares incorporated under the CA 2006.

(B) The Sellers are the registered legal and beneficial holders to the number of Sale Shares set out opposite their respective names in Schedule 1, representing the entire allotted and issued share capital of the Company.

(C) The Sellers have agreed to sell and the Buyer has agreed to buy the Sale Shares subject to the terms and conditions of this agreement.

(D) The Buyer has agreed to allot the Consideration Shares to the Sellers on Completion.

AGREED TERMS

1 Definitions and interpretation

1.1 In this agreement, including the Background and Schedules, the following words and expressions have the following meanings unless the context otherwise requires:

Accounts means the audited financial statements of the Company for the accounting reference periods ended on 30 September 2020 and on the Accounts Date, each comprising a balance sheet and including the notes thereon;

Accounts Date means 30 September 2021;

Authority means any supra national, national or sub national authority, commission, department, agency, regulator, regulatory body, court, tribunal or arbitrator;

Business Day means a day other than a Saturday or Sunday or public holiday in England, in New York City, the State of Nevada (USA) or in Nova Scotia (Canada);

Buyer’s Solicitors means Hill Dickinson LLP of The Broadgate Tower, 20 Primrose Street, London EC2A 2EW (Ref: Shantanu Sinha);

 

Buyer Shares means the common stock of the Buyer with a par value of $0.001 per common stock of the Buyer, trading on The NASDAQ Stock Market;

CA 2006 means the Companies Act 2006;

Hill Dickinson LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

FILENAME \* MERGEFORMAT Dragon - SPA (FINAL 31.03.2022)(172282750.18)


 

 

 

 

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Claim means a claim by the Buyer involving or relating to a breach of a General Warranty (other than a Tax Warranty or a Fundamental Warranty);

Company means Plasma App Ltd., further details of which are set out in Schedule 2;

Company Intellectual Property means:

(a) the Patents and Patent Applications;

(b) the Domain Names;

(c) the Confidential Information; and

(d) all other Intellectual Property which is used in, required for or material to the conduct of the Company’s business at the date of this agreement, or which relates to any of the assets of the Company, including those items set out in Schedule 7;

Completion means completion of the sale and purchase of the Sale Shares in accordance with this agreement;

Completion Balance Sheet means the balance sheet of the Company in the agreed form as at the date of this agreement, prepared on an accounting basis consistent with that employed in preparing the Accounts;

Completion Consideration Shares shall have the meaning set out in clause 5.2.1;

Completion Date means 1 April 2022;

Confidential Information means all trade secrets, data, know how and other such information (in whatever form held including written, oral, visual and electronic) which is for the time being not publicly known which is used in, or otherwise relates to, any part of the Company’s business including:

(a) any goods manufactured and/or sold, or services rendered by, the Company;

(b) the operations, management, administration or other financial affairs of the Company;

(c) the sale or marketing of any of the goods manufactured and/or sold, or services rendered by, the Company;

Consents means all licences, consents, permits and authorities necessary to carry on the Business in the places and in the manner in which it is carried on at the date of this agreement;

Consideration means the total consideration payable by the Buyer to the Sellers set out in clause 3;

Consideration Shares means the new Buyer Shares to be issued to the Sellers (in the proportions set out opposite their respective names in Schedule 1);

Data Protection Legislation means any and all data protection and privacy legislation in force from time to time in those parts of the world in which the Company operates and/or processes personal data (either directly or via a third party) including the UK GDPR, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as revised by the Privacy and Electronic Communications (EC Directive) (Amendments) Regulations 2011) and the Digital Economy Act 2017

Hill Dickinson LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

FILENAME \* MERGEFORMAT Dragon - SPA (FINAL 31.03.2022)(172282750.18)


 

 

 

 

img161678197_0.jpg 

 

and in relation to periods prior to 25 May 2018, the Data Protection Act 1984, the Data Protection Act 1998 (including in relation to any manual data in respect of which the transitional exemptions under Schedule 8 of the Data Protection Act 1998 have now expired) and all guidance or codes practice issued by any Supervisory Authority;

Disclosed means fully and fairly disclosed by the Company or the Sellers (with sufficient details to identify the nature and scope of the matter disclosed) in or under the Disclosure Letter or as set out or contained in this agreement;

Disclosure Documents means the two identical bundles of documents (as listed in the schedule to the Disclosure Letter) in the agreed form;

Disclosure Letter means the letter in the agreed form from the Sellers to the Buyer in relation to the Warranties having the same date as this agreement;

Domain Names means the domain names listed in Part 2 of Schedule 7;

EHS Laws means all applicable laws, statutes, secondary legislation, bye-laws, regulations, directives, common law, judgments, orders or decisions of any court, codes of practice, guidance notes and circulars (which have legal effect) and directions of any regulatory authority in force from time to time relating to EHS Matters;

EHS Matters means:

(a) the pollution, conservation or protection of, or prevention of harm to the Environment or health & safety of humans and animals;

(b) the presence, existence, disposal, release, spillage, deposit, escape, leak, migration or emission of Hazardous Substances;

(c) the exposure of any person to Hazardous Substances;

(d) the creation or existence of any noise, odour, radiation or nuisance

(e) the health and safety of any person, including any accidents, injuries, illnesses and diseases;

Employee means any person employed by the Company under a contract of employment;

Environmental Permit means any permit, licence, consent, approval, certificate, registration, exemption or other authorisation required under any EHS Laws for the operation of the Company’s business or the use of the Properties;

Encumbrance means a mortgage, charge, pledge, lien, option, restriction, right of first refusal, right of pre-emption, right of set-off, third-party right or interest, assignment by way of security, other encumbrance or security interest of any kind or another type of preferential arrangement (including a title transfer or retention arrangement) having similar effect howsoever arising;

Fundamental Warranties means a statement in paragraphs 1, 2 and 9.1 of Schedule 4;

Fundamental Warranty Claim means a claim by the Buyer involving or relating to a breach of a Fundamental Warranty;

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General Warranty means a Warranty other than a Tax Warranty and General Warranties means all those statements;

Hazardous Substances means any natural or artificial substance (whether solid, liquid or gas) whether alone or in combination with any other substance which is capable of causing harm to the Environment or the health or safety of humans or any living organism supported by the Environment;

Indemnity Claim means a claim by the Buyer involving or relating to a breach of any of the indemnities set out at clause 7.5;

Intellectual Property means all intellectual property rights, including:

(a) patents, Trade Marks, copyright, rights in designs, rights in inventions, database rights and topography rights (whether or not registered);

(b) applications for any of the rights in (a) above, together with the right to apply for registration of such rights;

(c) know-how, trade secrets, confidential information, technical information, customer and supplier lists and any other proprietary knowledge and/or information of whatever nature and howsoever arising,

together with any rights or types of protection of the same or of a similar nature to those listed in (a), (b) or (c) which may subsist anywhere in the world and in each case for their full term and/or effect;

Intellectual Property Agreement means any licence, consent or permission to use any Intellectual Property (including any unwritten or informal arrangement);

IT Contracts means all agreements or arrangements under which any third party provides or will provide any element of, or services relating to, the IT Systems, including leasing, hire purchase, licensing, maintenance, website hosting, outsourcing, security, back-up, disaster recovery, insurance, cloud computing and other types of services agreements.

IT Systems means any and all information and communications technologies used by the Company including computer hardware, software, operating systems, data, internet and web sites, firmware, networking, peripherals and all associated documentation or other infrastructure equipment or systems;

Issue Price means $1.86 per Consideration Share;

Lease means the lease, underlease or occupational licence or tenancy and any supplemental documents under which any Property is held details of which are as follows:

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Property

Name of Tenant

Term

Office 1.09

Building R71,

Rutherford Appleton Laboratory,

Harwell Oxford Innovation Campus, Didcot OX11 0QX, United Kingdom

 

the Company

01/02/2022 to 31/01/2023

Laboratory at Room Number G97,

Building R1,

Rutherford Appleton Laboratory,

Harwell Oxford Innovation Campus, Didcot OX11 0QX, United Kingdom

 

the Company

01/02/2022 to 31/01/2023

 

Losses means:

(a) all direct liabilities, costs, expenses (including reasonable legal expenses), claims, actions, proceedings, damages, fines, penalties; and

(b) each reasonable cost which the Buyer may incur whether before or after the start of an action in connection with:

(i) the settlement of a claim against the Sellers (or any of them) or the enforcement of a settlement; and

(ii) legal proceedings against the Sellers (or any of them) in which judgment is given for the Buyer or the enforcement of the judgment;

Material Adverse Change means any fact, matter, change, event, condition, circumstance or effect that individually or in the aggregate materially and adversely affects, or could reasonably be expected to materially and adversely affect, the business, operations, assets, position (financial, trading or otherwise), liabilities, profits, or prospects or operating results of the Company taken as a whole or which is reasonably likely to lead to any such fact, matter, change, event, condition, circumstance or effect at any time prior to Completion;

NASDAQ means The NASDAQ Stock Market LLC;

NASDAQ Rules means The NASDAQ Stock Market LLC Rules published by NASDAQ, as amended from time to time;

Patents and Patent Applications means the patents and patent applications listed in Part 1 of Schedule 7;

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Pensionable Employees means an Employee, officer, former employee or former officer of the Company, or the spouse or dependant of any such person;

Pension Schemes means the means the National Employment Savings Trust pension scheme;

Policies means policies of insurance maintained by or on behalf of the Company;

Proceedings means (in any jurisdiction):

(a) any litigation, administrative, arbitration or other proceedings, disputes, claims, actions or hearings including but not limited to any civil, criminal, arbitration, administrative or other proceeding; or

(b) any dispute with or, investigation, inquiry or enforcement proceedings by, any governmental, regulatory or similar body;

Properties means the properties at: (a) Office 1.09 Building R71; and (b) Laboratory at Room Number G97 Building R1, each at Rutherford Appleton Laboratory, Harwell Oxford Innovation Campus, Didcot OX11 0QX, United Kingdom;

Retained Shares End Date means the date falling 18 months after the date of Completion;

Retained Shares Value means $2,000,000;

Sale Shares means the 490,000 ordinary shares of £0.001 each in the capital of the Company, comprising the entire issued share capital of the Company;

Securities Act means the US Securities Act of 1933, as amended;

Sellers’ Loans means the loans made to the Company by the Sellers, further details of which are set out in Schedule 1;

Sellers’ Solicitors means Kingsley Napley LLP of 20 Bonhill Street, London EC2A 4DN (Ref: John Young);

Selling Stockholder Questionnaires means the selling stockholder questionnaire and the investor suitability questionnaire in the agreed form provided by the Buyer to the Sellers;

Service Agreement means the service agreement in the agreed form to be entered into between the Company and Dmitry Yarmolich;

Tax and Taxation have the meaning given in Schedule 6;

Tax Authority has the meaning given in Schedule 6;

Tax Claim means a claim by the Buyer under the Tax Covenant or involving or relating to breach of a Tax Warranty;

Tax Covenant means the covenant in Part 3 of Schedule 6;

Tax Warranty means a statement in Part 2 of Schedule 6 and Tax Warranties means all those statements;

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USD or $ means United States dollars, being the lawful currency of the United States of America;

Warranty means a statement in Schedule 4 or Part 2 of Schedule 6 and Warranties means all those statements; and

Worker means any person who personally performs work for the Company but who is not in business on their own account or in a client/customer relationship.

1.2 In this agreement (unless the context requires otherwise), a reference to:

1.2.1 a document in the “agreed form” is a reference to a document in a form approved and, for the purposes of identification, signed by or on behalf of each party;

1.2.2 a statutory provision includes a reference to the statutory provision as replaced, modified or re-enacted from time to time before or after the date of this agreement and any subordinate legislation made under the statutory provision before or after the date of this agreement and includes any statute, statutory provision or subordinate legislation that it amends or re-enacts provided that such replacement, modification and/or re-enactment does not increase the liability or any party under this agreement;

1.2.3 a person includes a reference to an individual, body corporate, association, government, state, agency of state or any undertaking (whether or not having a legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);

1.2.4 a party means a party to this agreement and includes its permitted assignees and/or the successors in title to substantially the whole of its undertaking and, in the case of an individual, to his estate and personal representatives;

1.2.5 a company (other than the “Company”) shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 this agreement includes its schedules;

1.2.7 a sub-clause in a clause, or to a paragraph in a schedule, are to a sub-clause of that clause or a paragraph of that schedule;

1.2.8 a clause, paragraph or schedule, unless the context otherwise requires, is a reference to a clause or paragraph of, or schedule to, this agreement;

1.2.9 “includes” and “including” shall mean including without limitation; and

1.2.10 this agreement or any provision of this agreement or any document are to this agreement, that provision or that document as in force for the time being and as amended from time to time in accordance with the terms of this agreement or that document or with the agreement of the relevant parties.

1.3 The contents table and headings in this agreement are for convenience only and do not affect its interpretation.

1.4 Any question as to whether a person is connected with another shall be determined in accordance with section 1122 of CTA2010 (except that in construing section 1122 “control” has the meaning given by

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section 1124 or section 450 of that Act so that there is control whenever section 1122 or 450 requires) which shall apply in relation to this agreement as it applies in relation to that Act.

2 ACQUISITION OF THE SALE SHARES

2.1 On the terms of this agreement at Completion each Seller shall sell with full title guarantee and free from all Encumbrances, and the Buyer shall purchase, the number of Sale Shares set opposite the name of that Seller in Schedule 1.

2.2 Title to, beneficial ownership of and any risk attaching to the Sale Shares shall pass to the Buyer on Completion and the Sale Shares shall be sold and purchased together with all rights and benefits attached to or accruing to them at or at any time after Completion.

2.3 The Buyer shall not be obliged to complete the purchase of any of the Sale Shares unless the purchase of all the Sale Shares is completed simultaneously.

2.4 Each Seller irrevocably waives any right of pre-emption or other right or restriction on transfer in respect of any of the Sale Shares conferred on him (whether under the articles of association of the Company or otherwise) and shall procure the irrevocable waiver of any such right or restriction conferred on any other person who is not a party to this agreement.

3 CONSIDERATION

The consideration for the sale and purchase of the Sale Shares shall be the allotment and issue to the Sellers of Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) of $20,000,000, and shall be satisfied in accordance with clauses 5.2 and 6.

4 CONSIDERATION SHARES

4.1 The Consideration Shares shall rank pari passu in all respects with the existing Buyer Shares in issue.

4.2 The Consideration Shares shall be treated by Buyer as issued and outstanding capital stock of Buyer, shall be held by Buyer as a book position registered in the name of each Seller, and each Seller will be entitled to exercise voting rights with respect to such Consideration Shares.

4.3 The Buyer Shares are listed on Nasdaq and registered under Section 12(b) of the Securities Exchange Act of 1934, as amended. The Buyer shall provide notice to the Nasdaq Stock Market, as required, in connection with the issuance of the Consideration Shares.

4.4 The Consideration Shares issuable hereunder shall be subject to the following transfer restrictions:

4.4.1 the Consideration Shares constitute “restricted securities” under the Securities Act, and may not be transferred absent registration under the Securities Act or an exemption therefrom, and any such transfer shall be subject to compliance with applicable state securities laws. Every Seller who receives Consideration Shares and every transferee or assignee of any Consideration Shares from any shall be bound by and subject to the terms and conditions of this clause 4.4, and Buyer may require, as a condition precedent to the assignment or transfer of any Consideration Shares, that any transferee or assignee must enter into an agreement with Buyer, whereby such transferee or assignee agrees in writing to be bound by, and subject to, all the terms and conditions of this clause 4.4. To ensure compliance with the restrictions imposed by this agreement, Buyer may issue appropriate “stop-transfer” instructions to its

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transfer agent, if any, and if Buyer acts as its own transfer agent, it may make appropriate notations to the same effect in its own records. Buyer shall not be required (i) to transfer on its books any Consideration Shares that have been transferred in violation of any of the provisions of this agreement or (ii) to treat as owner of such Consideration Shares, or to accord the right to vote or pay dividends, to any transferee or assignee to whom such shares have been purportedly so transferred;

4.4.2 all Consideration Shares issued in connection with this agreement, or any other securities issued in respect of such shares upon stock split, stock dividend, recapitalisation, merger, consolidation or similar event, shall bear a legend or legends referencing restrictions applicable to such shares under applicable securities laws and under this agreement, which legends shall state in substance:

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE BUYER THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED OR UNDER APPLICABLE STATE SECURITIES LAWS.

Buyer shall be obligated to remove such legend at such time as the Consideration Shares have been registered under the Securities Act or may be sold under Rule 144(i) promulgated thereunder.

5 COMPLETION

5.1 Completion shall take place at the office of the Buyer’s Solicitors (or at such other place as may be agreed in writing between the Buyer and the Sellers) on the Completion Date, when each of the matters set out in Schedule 3 shall occur.

5.2 Upon completion of the matters referred to in Schedule 3 the Buyer shall:

5.2.1 allot and issue to the Sellers Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) equal to $18,000,000 (Completion Consideration Shares), in the proportions set out opposite their respective names in Schedule 1; and

5.2.2 deliver to each Seller the Completion Consideration Shares issued to that Seller in accordance with clause 5.2.1 (subject to the requirements of the Securities Act) in dematerialised (electronic) form to such trading account (acceptable for shares trading on NASDAQ) as the relevant Seller shall notify the Buyer in writing.

6 Retention

6.1 On Completion, the Buyer shall withhold the Retained Shares Value and apply the Retained Shares Value in accordance with the provisions of this clause 6.

6.2 In the event that on the Retained Shares End Date:

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6.2.1 no bona fide claim has been brought under this agreement by the Buyer against the Sellers (or any of them); or

6.2.2 a bona fide claim is brought under this agreement by the Buyer against the Sellers (or any of them) and such claim is settled or resolved or withdrawn prior to the Retained Shares End Date; or

6.2.3 a claim has been brought under this agreement by the Buyer against the Sellers (or any of them) which is not bona fide,

the Buyer shall allot and issue to the Sellers Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) equal to the Retained Shares Value in accordance with clause 6.4.

6.3 In the event that the Buyer shall have served notice on the Sellers of a bona fide claim under this agreement, which has not been resolved, settled or withdrawn prior to the Retained Shares End Date, then:

6.3.1 if the Buyer’s reasonable estimate of the amount due from the Sellers in respect of the relevant claim (the “Estimated Loss”) is:

6.3.1.1 less than the Retained Shares Value, the Buyer shall on the Retained Shares End Date allot and issue to the Sellers Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) equal to the Retained Shares Value less the Estimated Loss in accordance with clause 6.4;

6.3.1.2 equal to or more than the Retained Shares Value no further Consideration Shares shall be allotted and issued to the Sellers on the Retained Shares End Date; and

6.3.2 upon all claims notified under clause 6.3 being settled, resolved or withdrawn by the Buyer, if the total amount due to the Buyer in respect of such claims is:

6.3.2.1 less than the Estimated Loss in respect of all such claims, the Buyer shall: (a) permanently retain the amount payable to the Buyer in respect of such claims; and (b) within 10 Business Days of the last such claim being resolved, settled or withdrawn (as the case may be) allot and issue to the Sellers Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) equal to the aggregate of all Estimated Losses in respect of all such claims less the amount payable to the Buyer in respect of such claims in accordance with clause 6.4; or

6.3.2.2 equal to or more than the Estimated Loss in respect of all such claims no further Consideration Shares shall be allotted and issued to the Sellers and the Buyer shall permanently retain the entire amount of the Estimated Loss,

and in either case the liability of the Sellers in respect of such claim shall be deemed satisfied to the extent of the amounts so retained by the Buyer.

6.4 Where any allotment and issue of Consideration Shares is to be made by the Buyer to the Sellers pursuant to this clause 6:

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6.4.1 such allotment and issue will be made to Sellers in the proportions set out opposite their respective names in Schedule 1 (and the provisions of clause 10.4 shall apply), which in the case of fractions, will be rounded down to the nearest whole share; and

6.4.2 the Buyer shall deliver to each Seller such Consideration Shares issued to that Seller in accordance with clause 6.4.1 (subject to the requirements of the Securities Act) in dematerialised (electronic) form to such trading account (acceptable for shares trading on NASDAQ) to such trading account (acceptable for shares trading on NASDAQ) as the relevant Seller shall notify the Buyer in writing.

6.5 For the purposes of this clause 6:

6.5.1 a claim shall be deemed to be settled upon the Sellers and the Buyer agreeing a final settlement in respect thereof and a claim shall be deemed to have been resolved upon any judgment, order or decree of a court of competent jurisdiction having been given in proceedings therein in respect of the claim and no appeal having been brought against the relevant judgment, order or decree within the applicable time limit;

6.5.2 the amount payable upon the settlement or resolution of the claim shall be the amount agreed by the Sellers and the Buyer under any such settlement or determined by any such judgment order or decree (as the case may be) to be payable by the Sellers in respect thereof; and

6.5.3 if a claim notified under clause 6.3 is based on a contingent liability and such contingent liability does not become an actual liability within nine months after the date on which notice of such claim was given, the Buyer shall, within 10 Business Days of the expiry of such nine month period, allot and issue to the Sellers Consideration Shares with a value (calculated by reference to the Issue Price and rounded down to the nearest whole even number of shares) equal to the Estimated Loss retained in respect of such claim pursuant to clause 6.3.

6.6 The Sellers and the Buyer shall each use their respective reasonable endeavours to ensure that all claims are resolved with all reasonable speed and diligence.

6.7 The Retained Shares Value available to meet a liability in respect of a claim shall not limit the Buyer’s recovery in relation to that claim.

7 WARRANTIES AND INDEMNITIES

7.1 The Sellers jointly and severally warrant to the Buyer in the terms of the Warranties on the date of this agreement. In addition, the Sellers jointly and severally warrant to the Buyer in the terms of the Fundamental Warranties on the Completion Date.

7.2 Where a Warranty is qualified by reference to information Disclosed:

7.2.1 no constructive or imputed knowledge and, unless specifically referred to in Schedule 5, actual knowledge relating to the Company or the Shares shall prevent or limit a claim made by the Buyer for breach of clause 7.1; and

7.2.2 the Sellers may not invoke the Buyer’s constructive or imputed knowledge and, unless specifically referred to in Schedule 5, actual knowledge of a fact or circumstance as a defence to a claim for breach of clause 7.1

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7.3 Each of the Warranties is separate and independent and, unless otherwise expressly provided, the Buyer shall have a separate claim and right of action in respect of every breach of every Warranty.

7.4 Unless otherwise specified, where any Warranty refers to the knowledge, information, belief or awareness of the Sellers (or a similar expression) the Sellers shall be deemed to have such knowledge, information, belief or awareness as the Sellers would have obtained had the Sellers made all reasonable enquiries into the subject matter of that Warranty.

7.5 Without limiting any other rights that the Buyer may have, including its rights to claim for damages for breach of Warranty, the Sellers shall indemnify and keep indemnified the Buyer from and against all Losses arising out of or in connection with:

7.5.1 the Completion Balance Sheet not being materially true, accurate and complete in all respects, with materiality for the purpose of this clause 7.5.1 being defined as a sum equal to or greater than £7,000;

7.5.2 any breach by the Company of any Data Protection Legislation prior to Completion;

7.5.3 the pensions contributions payable by the Company prior to Completion being in deficit or otherwise due and unpaid.

7.6 Any payment made by the Sellers in accordance with this clause 7 shall be made in full without any deduction or withholding by way of set off, counterclaim or otherwise.

7.7 Notwithstanding any other provision of this agreement the liability of the Sellers in respect of a Claim and, where specified, an Indemnity Claim and Tax Claim shall be limited in accordance with Schedule 5.

8 SELLER LIMITATIONS

8.1 Except as provided in clause 8.2, the liability of the Sellers in respect of:

8.1.1 any Claim, Fundamental Warranty Claim and Indemnity Claim shall be limited as set out in Schedule 5; and

8.1.2 any Tax Claim shall be limited as set out in Schedule 5 and Part 4 of Schedule 6,

but where there is any inconsistency between the provisions of Schedule 5 and Part 4 of Schedule 6 and any other provision of this agreement, the provisions of Part 4 of Schedule 6 shall prevail.

8.2 Nothing in Schedule 5 or in Part 4 of Schedule 6 shall operate to exclude or limit any liability of the Sellers or any remedy available to the Purchaser in relation to any Claim, Fundamental Warranty Claim or Tax Claim that arises as a result of the fraud, dishonesty or wilful concealment on the part of the Sellers.

9 TAX

The provisions of Schedule 6 shall apply.

10 FURTHER UNDERTAKINGS AND OBLIGATIONS OF THE SELLERS

10.1 Waiver of Claims

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The Sellers confirm that as at the date of Completion and save as expressly set out in the Service Agreement of the relevant Seller:

10.1.1 save in relation to accrued but unpaid remuneration for the month in which Completion takes place, accrued but unpaid holiday pay for the current holiday year or the right to reimbursement of expenses properly incurred, neither they nor any person connected with any of them has any claim or right of action of any kind, arising in any capacity or in any jurisdiction, against the Company or any of its shareholders, officers or employees (including, without limitation, any claim or right to further payment in respect of the sale of the Sale Shares whether pursuant to the articles of association of the Company otherwise);

10.1.2 save in relation to their employment by the Company, accrued but unpaid remuneration for the month in which Completion takes place, accrued but unpaid holiday pay for the current holiday year or the right to reimbursement of expenses properly incurred, there are no agreements or arrangements under which the Company has any actual, contingent or prospective obligation to or in respect of either of the Sellers or any person connected with either of them (including any obligation to have issued to any of them any shares in the capital of the Company pursuant to any option arrangements, convertible rights or otherwise); and

10.1.3 save in relation to accrued but unpaid remuneration for the month in which Completion takes place, accrued but unpaid holiday pay for the current holiday year or the right to reimbursement of expenses properly incurred, any claim which the Sellers or any person connected with either of them have or has against the Company (including any outstanding obligations to have issued to any of them any shares in the capital of the Company pursuant to any option arrangements, convertible rights or otherwise) is hereby waived in full, any obligation owed to the Sellers or any such connected person by the Company is hereby released and the Sellers indemnify the Buyer and the Company against any loss, liability or cost incurred in connection with any such claim or obligation.

10.2 Further assurance

10.2.1 The Sellers covenant with the Buyer that they will for the period of two years following completion do anything the Buyer may reasonably request in writing to give the Buyer full and unrestricted legal and beneficial title to the Sale Shares and to give effect to the provisions of this agreement including, on receiving the Buyer’s reasonable request:

10.2.1.1 doing and executing, or arranging for the doing and executing of, each act, document and thing necessary to implement this agreement; and

10.2.1.2 giving to the Buyer all information they possess or to which they have access relating to the Company’s business and allowing the Buyer to copy any document containing that information.

10.2.2 Forthwith following Completion the Sellers shall (and shall procure that any other person shall), if so requested by the Buyer, send to the Buyer at the Company’s principal place of business for the time being all records, correspondence, documents, files, memoranda and

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other papers belonging to the Company and which are not delivered at Completion (whether or not such documents are referred to in Schedule 3).

10.3 Dealing with the Sale Shares pending registration

10.3.1 The Sellers undertake to the Buyer that for so long as either of them remains the registered holder of any of the Sale Shares after Completion they will:

10.3.1.1 hold the Sale Shares and the dividends and other distributions of profits or surplus or other assets declared, paid or made in respect of them after Completion and all rights arising out of or in connection with them in trust for the Buyer;

10.3.1.2 deal with and dispose of the Sale Shares and all such dividends, distributions and rights as the Buyer may direct;

10.3.1.3 vote at all meetings which they shall be entitled to attend as the registered holder of the Sale Shares in such manner as the Buyer shall direct; and

10.3.1.4 execute all instruments of proxy or other documents which the Buyer may require to enable the Buyer to attend and vote at any such meeting.

10.3.2 For the purpose of giving effect to clause 10.3.1 each of the Sellers hereby appoints the Buyer (acting by any of its directors from time to time) to be his attorney in his name and on his behalf to exercise all or any of the rights in relation to the Sale Shares as the Buyer in its absolute discretion sees fit from Completion to the day on which the Buyer or its lawful nominee is registered in the register of members of the Company as the holder of the relevant Sale Shares, including:

10.3.2.1 receiving notice of, attending and voting at a general meeting, class meeting or other meeting of the Company;

10.3.2.2 completing and returning any meeting requisition, form of proxy, consent to short notice, written resolution or other document required to be signed by the registered holder of the Sale Shares;

10.3.2.3 dealing with, and giving directions as to, any monies, securities, benefits, documents, notices or other communications (in whatever form) arising by right of the Sale Shares or received in connection with the Sale Shares from the Company or any other person; and

10.3.2.4 executing, delivering and doing all deeds, instruments and acts in that Seller’s name as may be done in the Seller’s capacity as the registered holder of the relevant Sale Shares,

and for that purpose each Seller hereby authorises the Company to send any written resolutions, notices or other communications in respect of the Sale Shares registered in his name to the Buyer. The power of attorney granted by this clause (b) is granted by each Seller to secure the interest of the Buyer in the Sale Shares and, accordingly, shall be irrevocable.

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10.4 Resale Registration Statement

10.4.1 Subject to applicable law and the rules and regulations of the US Securities and Exchange Commission (SEC), as soon as practicable following the Completion, but in any event no later than ten (10) Business Days thereafter, Buyer shall prepare and file with the SEC, a registration statement of the Buyer registering the resale by the Sellers of the Consideration Shares (such shares, the Registrable Shares, and such registration statement, the Resale Registration Statement). The Resale Registration Statement shall be on Form S-3 (except if Buyer is then ineligible to register for resale the Registrable Shares on Form S-3, in which case such registration shall be on such other form available to register for resale the Registrable Shares). The Sellers shall cause to be completed, executed and delivered the Selling Stockholder Questionnaires, and will provide all such completed Selling Stockholder Questionnaires to Buyer. Each Seller who has returned a properly completed Selling Stockholder Questionnaire is referred to herein as a “Selling Stockholder”.

10.4.2 Buyer shall thereafter use its best efforts to cause the Resale Registration Statement to be declared effective by the SEC as soon as practicable, and to keep the Resale Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Shares have been publicly sold by the Selling Stockholders or (ii) the date that all Registrable Shares may be sold by the Selling Stockholders without volume or manner-of-sale restrictions pursuant to Rule 144, and without the requirement for Buyer to be in compliance with the current public information requirement under Rule 144 , as determined by the counsel to Buyer pursuant to a written opinion letter to such effect, addressed and acceptable to Buyer’s transfer agent and the Selling Stockholders.

10.4.3 The Resale Registration Statement (or any prospectus or prospectus supplement forming a part of such Resale Registration Statement), as initially filed, shall include the Registrable Shares of all Selling Stockholders for whom Buyer has received completed Selling Stockholder Questionnaires on or before the third Business Day following Completion. Upon the Resale Registration Statement becoming effective and subject to the provisions of this clause 10.4, the Registrable Shares shall be available for public resale, from time to time and on a continuing basis, pursuant to the Resale Registration Statement and in compliance with the prospectus delivery requirements of the Securities Act.

10.4.4 Buyer shall furnish to each Selling Stockholder such numbers of copies of a prospectus, including a preliminary prospectus, and any supplement to any prospectus, as required by the Securities Act and shall take such other actions (including causing the removal of any restricted legends), as the Selling Stockholders may reasonably request in order to facilitate their disposition of their Registrable Shares, subject to each Selling Stockholder providing any information reasonably requested by Buyer to facilitate such action.

10.4.5 Upon:

(i) the issuance by the SEC of a stop order suspending the effectiveness of the Resale Registration Statement or the initiation of proceedings with respect to the Resale Registration Statement under Section 8(d) or 8(e) of the Securities Act;

(ii) the occurrence of any event or the existence of any fact (a “Material Event”) as a result of which (x) the Resale Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (y) any prospectus included in the Resale Registration Statement shall contain any untrue

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statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(iii) the occurrence or existence of any pending corporate development that, in the reasonable judgment of the Company, makes it necessary to suspend the availability of the Resale Registration Statement and the related prospectus for a period of time; or

(iv) the Company’s having filed a document pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that, in the reasonable judgment of the Company, must be included in the Resale Registration Statement pursuant to a post-effective amendment to the Resale Registration Statement or supplement to the related prospectus (any such document, an “Exchange Act Report”):

10.4.5.1 in the case of (ii) of clause 10.4.5 above, subject to clause 10.4.5.3 below, as promptly as practicable, the Company shall prepare and file, if necessary pursuant to applicable law, a post-effective amendment to the Resale Registration Statement or a supplement to the related prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into the Resale Registration Statement and related prospectus so that (1) the Resale Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (2) such prospectus does not contain any untrue statement of a material fact or omit to state any 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, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, and, in the case of a post-effective amendment to the Resale Registration Statement, subject to the next sentence, use reasonable efforts to cause it to be declared effective as promptly as is practicable;

10.4.5.2 in the case of (iv) of clause 10.4.5 above, subject to clause 10.4.5.3 below, as promptly as practicable, but in no event more than five (5) Business Days, following the Company’s filing of an Exchange Act Report, the Company shall prepare and file, if necessary, pursuant to applicable law, a post-effective amendment to the Resale Registration Statement or a supplement to the related prospectus incorporating by reference the Exchange Act Report into the Resale Registration Statement or including within such post-effective amendment or supplement the information contained in the related Exchange Act Report; and

10.4.5.3 the Company shall give notice to the Holders with respect to the Resale Registration Statement, that the availability of the Resale Registration Statement is suspended (Deferral Notice) and, upon receipt of any Deferral Notice, each Holder agrees not to sell any Registrable Shares pursuant to the Resale Registration Statement until such Holder’s receipt of copies of the supplemented or amended prospectus provided for in clause (A) or (B) above, or until it is advised in writing by the Company that the prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such prospectus.

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The Company will use its reasonable best efforts to ensure that the use of the prospectus with respect to the Resale Registration Statement may be resumed (w) in the case of clause (i) of above, as promptly as is practicable, (x) in the case of clause (ii) above, as soon as, in the reasonable judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the material interests of the Company, (y) in the case of clause (iii) above, as soon as, in the reasonable judgment of the Company, such suspension is no longer necessary; provided, that in no event shall (A) the aggregate duration of all suspensions arising from events described in clauses (ii) and (iii) above exceed 60 days in any 12-month period or (B) a suspension arising from an event described in clause (ii) or clause (iii) above be invoked more than twice in any 12-month period, and (z) in the case of clause (iv) above, as soon as practicable following the filing of the Exchange Act Report, but in no event sooner than the Commission has declared the post-effective amendment, if applicable, effective. Any such period during which the availability of the Resale Registration Statement and any related prospectus is suspended is referred to as the “Deferral Period.”

 

10.4.6 All of the expenses incurred in connection with any registration of Registrable Shares pursuant to this agreement, including all SEC fees, blue sky registration and filing fees, listing notices and filing fees, printing fees and expenses, transfer agents’ and registrars’ fees and expenses and all fees and expenses of Buyer’s outside counsel and independent accountants of Buyer shall be paid by Buyer. Buyer shall not be responsible for any selling expenses of any Selling Stockholder (including any broker’s fees or commissions) or fees or expenses of outside counsel or independent accountants of the Company or any Selling Stockholder or, to the extent incurred prior to Completion, Seller in connection with the Resale Registration Statement.

10.4.7 To the maximum extent permitted by law, Buyer will indemnify and hold harmless each Selling Stockholder against any losses, claims, damages, or liabilities to which they may become subject under the Securities Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the following (collectively a Violation): (i) any untrue statement or alleged untrue statement of a material fact contained in the Resale Registration Statement or incorporated reference therein, including any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by Buyer of the Securities Act, any state securities law or any rule or regulation promulgated under the Securities Act or any state securities law in connection with the offering covered by such registration statement; provided however, that Buyer shall not be liable for any such loss, claim, damage, liability or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by a Selling Stockholder.

10.5 Each Seller acknowledges that he may not sell or otherwise transfer the Consideration Shares without registration under the Securities Act or an exemption therefrom and that he must bear the economic risk of the Seller’s investment in the Consideration Shares for an indefinite period of time because, among other reasons, the Consideration Shares have not been registered under the Securities Act or under the securities laws of any state of the United States and, therefore, cannot be resold, pledged, transferred, assigned or otherwise disposed of unless subsequently registered under the Securities Act and under applicable state securities laws or an exemption from such registration is available. Each Seller is aware of the provisions of Rule 144 promulgated under the Securities Act.

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The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

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11 Confidentiality

11.1 Each party undertakes to the others (for itself/himself and for the benefit of the Company) that it/he will:

11.1.1 not use or disclose to a person Confidential Information it/he has or acquires; and

11.1.2 make every effort to prevent the use or disclosure of Confidential
Information.

11.2 Clause 11.1 does not apply to:

11.2.1 disclosure of Confidential Information to a director, officer or employee of the Buyer or the Company whose function requires it/him to have the Confidential Information;

11.2.2 use or disclosure of Confidential Information required to be used or disclosed by law or by any Authority (but only to the extent required by law);

11.2.3 disclosure of Confidential Information to an adviser for the purpose of advising the party but only on terms that clause 11.1 applies to use or disclosure by the adviser; or

11.2.4 Confidential Information that has come into the public domain except by a breach of clause 11.1.

12 Announcements

12.1 Subject to clauses 11 and 12.2, neither party shall not make or authorise any public announcement or other communication or circular relating to the existence or provisions of this agreement or concerning the terms of any matter contemplated by or ancillary to this agreement unless they have first obtained the written consent of the other party, such consent not to be unreasonably withheld or delayed.

12.2 Clause 12.1 shall not apply:

12.2.1 to any announcement agreed in writing between the Buyer and the Sellers following Completion;

12.2.2 to an announcement which is required:

12.2.2.1 to comply with the Buyer’s obligations as a company trading on NASDAQ;

12.2.2.2 by law; or

12.2.2.3 by any Authority or securities exchange to which the relevant party (or person connected with it) is subject or submits, wherever situated, whether or not the requirement for disclosure has the force of law; or

12.2.2.4 to vest the full benefit of this agreement in the relevant party,

provided that, in each case, such announcement shall: (a) only contain content which is so required; and (b) only be made after consultation (so far as reasonably practicable) as to the timing and content of such announcement with the other party; and

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12.2.3 to an announcement which is expressly required or permitted by this agreement or is otherwise required to vest the full benefit of this agreement in the relevant party, provided that, in each case, such announcement shall only contain content which is so required or permitted.

13 Assignment and successors

13.1 No party shall assign, transfer, charge, make the subject of a trust or deal in any other manner with this agreement or any of its rights under this agreement or purport to do any of the same without the prior written consent of the other party except that the Buyer may assign the benefit of any provision to which it is entitled from time to time, in whole or in part and without restriction, to any member of the Buyer’s group or to a bank or financial institution by way of security and may grant an Encumbrance or security interest to any such bank or other financial institution but the Seller's liability to any assignee in respect of those rights shall not be greater than if no assignment had taken place.

13.2 This agreement shall be binding on and shall enure for the benefit of each party’s successors, estate, personal representatives and permitted assignees (as the case may be).

14 Third party rights

14.1 The Company, any person to whom the benefit of any provision of this agreement is assigned in accordance with clause 13.1 and each person falling within the category of persons described in clause 13.2 shall be entitled under the ADDIN CiteCheck Marker Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement which confers (expressly or impliedly) any benefit on any such person.

14.2 Subject to clause 14.1, a person who is not a party to this agreement shall have no rights under the ADDIN CiteCheck Marker Contracts (Rights of Third Parties) Act 1999 to enforce a provision of this agreement.

14.3 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

15 Notices

15.1 Any notice given under this agreement shall be in writing in the English language and signed by or on behalf of the party giving it and shall be served by sending it to the party due to receive it by any of the following methods:

15.1.1 delivering it by hand; or

15.1.2 where it is to be served in the country in which it is posted, by sending it by pre-paid first class recorded delivery post or other next working day delivery service providing proof of delivery;

15.1.3 where it is to be served in a country other than the country in which it is posted, by sending it by pre-paid airmail providing proof of delivery; or

15.1.4 sending it by email.

15.2 For the purposes of clause 15.1, the postal and email addresses of the parties are:

15.2.1 In the case of the Sellers:

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15.2.1.1 Post: to the address set out opposite their respective names in Part 1 of Schedule 1; or

15.2.1.2 Email: to the email address set out opposite their respective names in Part 1 of Schedule 1.

15.2.2 In the case of the Buyer:

15.2.2.1 Post: For the attention of Ken Rice, 85 Swanson Road., Suite 222, Boxborough, MA 01719; or

15.2.2.2 Email: ken.rice@metamaterial.com.

15.3 Subject to clause 15.2, in the absence of evidence of earlier receipt, any notice given pursuant to this clause shall be deemed to have been received:

15.3.1 if delivered by hand, at the time of actual delivery to the address referred to in clause 15.2;

15.3.2 in the case of pre-paid first class recorded delivery post or other next working day delivery service providing proof of delivery, two Business Days after the date of posting;

15.3.3 in the case of pre-paid airmail providing proof of delivery, five Business Days after the date of posting; and

15.3.4 in the case of email, one hour after the document or information sent or received;

15.4 If deemed receipt occurs before 9.00am on a Business Day, the notice shall be deemed to have been received at 9.00am on that day and if deemed receipt occurs after 5.00pm on a Business Day or on any day which is not a Business Day, the notice shall be deemed to have been received on the next Business Day.

15.5 For the avoidance of doubt, notice given under this agreement shall not be validly served if sent by fax or telex or by means of a website.

15.6 Notwithstanding any other provision of this agreement, each of the Sellers agrees that any notice to be given to or by all of the Sellers pursuant to this agreement shall be deemed to have been properly given if it is given to or by any of the Sellers in accordance with clause 15.1

15.7 Where a party to this agreement dies or is declared bankrupt, notice may be given to the person entitled to that party’s rights by transmission by addressing it to that person by name or by the title of representative of the deceased party or trustee of the bankrupt party (or by similar designation) at an address supplied for that purpose by the person claiming to be entitled by transmission. Until an address has been supplied, a notice or other document may be served as set out in this clause 15 as if the death or bankruptcy had not occurred.

16 General

16.1 Each party shall pay its own costs relating to the negotiation, preparation, execution and performance by it of this agreement and of each document referred to in it, save that the Buyer shall satisfy the costs incurred by the Sellers’ Solicitors for advising the Sellers in relation to the transaction contemplated by this agreement, capped at an amount of £25,000 (exclusive of any VAT and disbursements).

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16.2 A variation of this agreement is valid only if it is in writing and signed by or on behalf of each party. The Buyer and the Sellers shall not be required to obtain the consent of the Company or any other third party on whom a benefit is conferred under this agreement to the termination or variation of this agreement or to the waiver or settlement of any right or claim arising under it.

16.3 The failure or delay in exercising a right or remedy provided by this agreement or by law does not constitute a waiver of that (or any other) right or remedy. No single or partial exercise of a right or remedy provided by this agreement or by law prevents the further exercise of that (or any other) right or remedy.

16.4 The Buyer’s rights and remedies contained in this agreement are cumulative and not exclusive of any rights or remedies provided by law.

16.5 Except to the extent that they have been performed or where this agreement provides otherwise, the obligations contained in this agreement remain in force after Completion.

16.6 This agreement, together with all agreements entered into or to be entered into pursuant to the terms of this agreement, constitutes the entire agreement between the parties in connection with the matters dealt with therein and (save in respect of fraudulent misrepresentation) supersedes and extinguishes all previous agreements between the parties (whether orally or in writing) in connection with the matters dealt with therein.

16.7 Any liability to the Buyer under this agreement may be released, compounded or compromised (in whole or in part) and any time or indulgence may be given by the Buyer in its absolute discretion as regards any of the Sellers without in any way prejudicing or affecting the Buyer’s rights against any of the other Sellers in respect of that (or any other) liability, whether joint or several or otherwise.

16.8 If a Seller is required by law to make a deduction or withholding in respect of any sum payable under this agreement such sum shall be increased by such additional amount as will ensure that after such deduction or withholding (as the case may be) the Buyer will receive the same amount as it would have received in the absence of any such deduction or withholding.

16.9 If any Tax Authority charges to Tax any sum paid by any of the Sellers under or pursuant to this agreement then that Seller shall pay such additional amount as will ensure that the total amount paid, less the tax chargeable on such amount, is equal to the amount that would otherwise be payable under this agreement.

16.10 Each provision of this agreement is severable and distinct from the others. If any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of this agreement but (except to that extent or in those circumstances in the case of that provision) the validity, legality and enforceability of that and all other provisions of this agreement shall not be affected or impaired and shall remain valid and enforceable.

16.11 If any provision of this agreement is found to be illegal, invalid or unenforceable in accordance with clause 16.10 but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it legal, valid or enforceable.

16.12 This agreement may be executed in any number of counterparts each of which when executed and delivered is an original but all the counterparts together shall constitute the same document.

16.13 Delivery of a copy of this agreement showing an executed signature page of a counterpart by AdobeTM Portable Document Format (PDF) sent by electronic mail shall take effect as delivery of an executed

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counterpart of this agreement. If such method is adopted, without prejudice to the validity of this agreement, each party shall provide the others with a hard copy original of that executed counterpart as soon as reasonably practicable thereafter.

17 Governing law and jurisdiction

17.1 This agreement is governed by and shall be construed in accordance with English law.

17.2 The courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this agreement (including non-contractual disputes and claims) and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England and Wales.

17.3 Each party irrevocably waives any objection which it might at any time have to the courts of England and Wales being nominated as the forum to decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this agreement (including non-contractual disputes and claims) and agrees not to claim that the courts of England and Wales are not a convenient or appropriate forum.

IN WITNESS whereof the parties have executed this agreement as a deed and it is hereby delivered on the day and year first before written.

 

 

 

 

 

 

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EXECUTED AND DELIVERED AS A DEED by DMITRY YARMOLICH in the presence of:

 

/s/ Dimitry Yarmolich

 

/s/ Lada Yarmolich

 


Witness signature

 

Lada Yarmolich

 


Witness name

 

25 Galley Field

 


Witness address

 

Abingdon, OX14 3RU, UK

 


 

 

Housewife

 


Witness occupation

 

 

 

 

 

 

 

EXECUTED AND DELIVERED AS A DEED by DZIANIS YARMOLICH in the presence of:

 

/s/ Dzianis Yarmolich

 

 

 

 

/S/ Alena Seliazniova

 


Witness signature

 

Alena Seliazniova

 


Witness name

 

82 Belgrave Court, 36

 


Witness address

 

Westferry circus, E14 8RJ,

 


 

 

Financial Controller

 


Witness occupation

 

 

 

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20 Primrose Street

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EXECUTED AND DELIVERED AS A DEED by META MATERIALS INC. acting by George Palikaras, a director, in the presence of:

 

/s/ George Palikaras

 

 

 

 

 

 

 

/s/ Nadine Geddes

 


Witness signature

 

Nadine Geddes

 


Witness name

 

17 Julies Walk

 


Witness address

 

Halifax, NS B3m 2Z8

 


 

 

Director of operations

 


Witness occupation

 

 

 

 

Hill Dickinson LLP

The Broadgate Tower

20 Primrose Street

London EC2A 2EW

www.hilldickinson.com

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Exhibit 31.3

CERTIFICATION PURSUANT TO

RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,

AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, George Palikaras, certify that:

1.I have reviewed this Amendment No. 1 to quarterly report on Form 10-Q of Meta Materials Inc.;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

Date: June 1, 2022

 

 

By:

 

/s/ George Palikaras

 

 

 

 

 

George Palikaras

 

 

 

 

 

Chief Executive Officer

 

 


Exhibit 31.4

CERTIFICATION PURSUANT TO

RULES 13a-14(a) AND 15d-14(a) UNDER THE SECURITIES EXCHANGE ACT OF 1934,

AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Kenneth Rice, certify that:

1.I have reviewed this Amendment No. 1 to quarterly report on Form 10-Q of Meta Materials Inc;

2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 


 

Date: June 1, 2022

 

 

By:

 

/s/ Kenneth Rice

 

 

 

 

 

Kenneth Rice

 

 

 

 

 

Chief Financial Officer