UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): March 1, 2021
TAILWIND ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
Delaware | 001-39489 | 85-1288435 | |
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
|
1545 Courtney Avenue Los Angeles, CA |
90046 | ||
(Address of principal executive offices) | (Zip Code) | ||
(646) 432-0610
Registrant’s telephone number, including area code
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Units, each consisting of one share of Class A Common Stock, $0.0001 par value, and one half of one redeemable warrant | TWND.U | New York Stock Exchange |
Class A Common Stock included as part of the units | TWND | New York Stock Exchange |
Redeemable warrants included as part of the units, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 | TWND WS | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry Into A Material Definitive Agreement.
Business Combination Agreement
On March 1, 2021, Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Tailwind, Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), QOMPLX, Inc., a Delaware Corporation (“QOMPLX”), and Rationem, LLC, a Delaware limited liability company, in its capacity as the representative of the stockholders of QOMPLX (“QOMPLX Stockholder Representative”).
The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of each of Tailwind, Merger Sub and QOMPLX.
The Business Combination
The Business Combination Agreement provides for, among other things, the following transactions: (i) QOMPLX will changes its name to “QOMPLX Operations, Inc.”; (ii) the certificate of incorporate and bylaws of Tailwind will be amended and restated; and (iii) Merger Sub will merge with and into QOMPLX, with QOMPLX as the surviving company in the merger, and after giving effect to such merger, continuing as a wholly-owned subsidiary of New QOMPLX (the “Merger”). In addition, in connection with the Merger and the other transactions contemplated by the Business Combination Agreement (collectively, the “Business Combination”), Tailwind is expected to change its name to “QOMPLX, Inc.” (“New QOMPLX”).
The Business Combination is expected to close in mid-2021, following the receipt of the required approvals by Tailwind’s stockholders and the fulfillment of other closing conditions.
Business Combination Consideration
In accordance with the terms and subject to the conditions of the Business Combination Agreement, outstanding shares of QOMPLX (other than treasury shares and any Dissenting Shares (as defined in the Business Combination Agreement)) will be exchanged for shares of Class A common stock, par value $0.0001 per share, of New QOMPLX (the “New QOMPLX Common Stock”) and outstanding QOMPLX vested options to purchase shares of QOMPLX will be exchanged for comparable options to purchase New QOMPLX Common Stock, in each case, based on an implied QOMPLX equity value of $850 million. This implied equity value of $850 million is reduced by the accrued and unpaid interest under the Notes issued under the Bridge Financing Agreements (each as defined and described in more detail in the section entitled “PIPE Financing and Bridge Financing (Private Placement)”). Unvested QOMPLX options will also be exchanged for comparable options to purchase New QOMPLX Common Stock based on the same exchange ratio that is used for the exchange of the vested options to purchase shares of QOMPLX as described herein.
Representations and Warranties; Covenants
The Business Combination Agreement contains representations, warranties and covenants of each of the parties thereto that are customary for transactions of this type. Each of Tailwind and QOMPLX has also agreed to take all action within its control as may be necessary or reasonably appropriate such that, as of the closing of the Business Combination, the New QOMPLX board of directors will consist of seven directors, which shall be divided into three classes and be comprised of the chief executive officer of QOMPLX, two individuals determined by QOMPLX prior to the effectiveness of the Registration Statement, three individuals determined by Tailwind Sponsor, LLC, a Delaware limited liability company (the “Tailwind Sponsor”), after reasonably consulting with the Company and prior to the effectiveness of the Registration Statement, and one director determined by Cannae Holdings, LLC, a Delaware limited company (“Cannae”), prior to the effectiveness of the Registration Statement.
Each of Tailwind and QOMPLX has agreed to use its reasonable best efforts to consummate the Business Combination as promptly as reasonably practicable. In addition, QOMPLX has agreed to use its reasonable best efforts to consummate each of the acquisitions of Sentar, Inc., an Alabama corporation (“Sentar”), and substantially all assets of RPC Tyche LLP, a limited liability partnership incorporated under the laws of England and Wales (“RPC Tyche”) (such acquisitions, collectively, the “Pipeline Acquisitions”), in each case, substantially concurrently with the closing of the Business Combination in accordance with the terms of the definitive transaction agreements for the Pipeline Acquisitions.
In addition, Tailwind has agreed to adopt an equity incentive plan effective as of one day prior to the closing date of the Business Combination, as described in the Business Combination Agreement.
Conditions to Each Party’s Obligations
The obligation of Tailwind and QOMPLX to consummate the Business Combination is subject to certain closing conditions, including, but not limited to, (i) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (ii) the absence of any order, law or other legal restraint or prohibition issued by any court of competent jurisdiction or other governmental entity of competent jurisdiction enjoining or prohibiting the consummation of the Merger, (iii) the effectiveness of the Registration Statement on Form S-4 (the “Registration Statement”) in accordance with the provisions of the Securities Act registering the New QOMPLX Common Stock to be issued in the Business Combination, (iv) the required approvals of Tailwind’s stockholders, (v) the required approvals of QOMPLX’s stockholders, (iv) Tailwind having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended) remaining immediately after the closing of the Business Combination, (vii) the approval by NYSE of Tailwind’s initial listing application in connection with the Business Combination and (viii) the aggregate cash proceeds from Tailwind’s trust account, together with the proceeds from the PIPE Financing and the Bridge Financing (each as defined below), being no less than $200,000,000 (after deducting any amounts paid to Tailwind stockholders that exercise their redemption rights in connection with the Business Combination and the aggregate cash purchase price payable by QOMPLX upon the closing of the Pipeline Acquisitions).
In addition, the obligation of Tailwind to consummate the Business Combination is subject to the fulfillment of other closing conditions, including, but not limited to, the consummation by QOMPLX of each of the Pipeline Acquisitions immediately prior to, or substantially concurrently with, the closing of the Business Combination for an aggregate closing cash purchase price of no more than $200,000,000.
Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances prior to the closing of the Business Combination, including, but not limited to, (i) by mutual written consent of Tailwind and QOMPLX, (ii) by Tailwind if the representations and warranties of QOMPLX and the QOMPLX Stockholder Representative are not true and correct or if QOMPLX or the QOMPLX Stockholder Representative fails to perform any covenant or agreement set forth in the Business Combination Agreement such that certain conditions to closing cannot be satisfied and the breach or breaches of such representations or warranties or the failure to perform such covenants or agreements, as applicable, are not cured or cannot be cured within certain specified time periods, (iii) by QOMPLX if the representations and warranties of Tailwind or Merger Sub (collectively, the “Tailwind Parties”) are not true and correct or if any Tailwind Party fails to perform any covenant or agreement set forth in the Business Combination Agreement such that certain conditions to closing cannot be satisfied and the breach or breaches of such representations or warranties or the failure to perform such covenants or agreements, as applicable, are not cured or cannot be cured within certain specified time periods, (iv) subject to certain limited exceptions, by either Tailwind or QOMPLX if the Business Combination is not consummated by 11:59 P.M. (pacific time) on August 31, 2021, (v) by either Tailwind or QOMPLX if certain required approvals are not obtained from Tailwind stockholders after the conclusion of a meeting of Tailwind’s stockholders held for such purpose at which such stockholders voted on such approvals, (vi) by either Tailwind or QOMPLX, if any governmental entity of competent jurisdiction shall have issued an order permanently enjoining or prohibiting the Merger and such order shall have become final and nonappealable, (vii) by Tailwind if QOMPLX has not delivered to Tailwind a written consent of the QOMPLX stockholders approving the Business Combination and the transactions contemplated thereby (including the Merger) within one business day of the Registration Statement being declared effective under the Securities Act of 1933, as amended (the “Securities Act”), and (viii) by Tailwind if QOMPLX has not delivered the Transaction Support Agreements (as defined below) executed by the requisite QOMPLX stockholders within one business day of the signing of the Business Combination Agreement.
If the Business Combination Agreement is validly terminated, none of the parties to the Business Combination Agreement will have any liability or any further obligation under the Business Combination Agreement, except in the case of Willful Breach or Fraud (each, as defined in the Business Combination Agreement) and for customary obligations that survive the termination thereof (such as confidentiality obligations).
A copy of the Business Combination Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing description of the Business Combination Agreement is qualified in its entirety by reference thereto. The Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of the Business Combination Agreement or other specific dates, as specified therein. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties, including for the purpose of allocating risk among the parties rather than establishing matters as facts, and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement. The representations, warranties and covenants in the Business Combination Agreement are also modified in important part by the underlying disclosure schedules which are not filed publicly, and are subject to a contractual standard of materiality different from that generally applicable to stockholders. Tailwind does not believe that these schedules contain information that is material to an investment decision.
Sponsor Letter Agreement
Concurrently with the execution of the Business Combination Agreement, (i) Tailwind, (ii) Tailwind Sponsor, (iii) QOMPLX and (iv) each of Philip Krim, Chris Hollod, Matthew Eby, Alan Sheriff, Wisdom Lu, Neha Parikh and Will Quist, each of whom is a member of Tailwind’s board of directors and/or management (collectively, the “Insiders”), entered into the Sponsor Letter Agreement (the “Sponsor Letter Agreement”), pursuant to which, among other things, the Tailwind Sponsor agreed to: (i) vote in favor of each of the transaction proposals to be voted upon at the meeting of Tailwind stockholders, including approval of the Business Combination Agreement and the transactions contemplated thereby (including the Merger); (ii) waive any adjustment to the conversion ratio set forth in the governing documents of Tailwind or any other anti-dilution or similar protection with respect to the shares of Class B common stock, par value $0.0001 per share, of Tailwind (the “Tailwind Class B Shares”) (whether resulting from the transactions contemplated by the PIPE Subscription Agreements (as defined below) or otherwise); and (iii) subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Business Combination, transfer, surrender and forfeit to Tailwind 835,539 Tailwind Class B Shares for no consideration, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement. In addition, pursuant to the Sponsor Letter Agreement, subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the closing of the Business Combination, each of Tailwind, the Tailwind Sponsor and the Insiders have agreed to terminate the lock-up provisions in respect of the Founder Shares (as defined in the Letter Agreement) that are set forth in Section 5(a) of that certain letter agreement, dated as of September 3, 2020 (as it may be amended, supplemented or otherwise modified from time to time, the “Letter Agreement”), by and among Tailwind, Tailwind Sponsor and the Insiders, which included, among other restrictions, a one year lock-up restriction on the Founder Shares following an initial business combination (subject to certain exceptions). Following the consummation of the Business Combination, the Tailwind Sponsor will be subject to the lock-up provisions described in the Investor Rights Agreement (as defined below).
A copy of the Sponsor Letter Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Sponsor Letter Agreement is qualified in its entirety by reference thereto.
PIPE Financing and Bridge Financing (Private Placement)
Concurrently with the execution of the Business Combination Agreement, Tailwind entered into (i) subscription agreements (the “Subscription Agreements”) with certain investors, including, among others, Cannae and additional third party investors and (ii) a bridge financing agreement (the “Bridge Financing Agreement”, together with the Subscription Agreements, collectively, the “Financing Agreements”) with QOMPLX, Cannae and certain other stockholders of QOMPLX. Pursuant to the Subscription Agreements, (A) each investor agreed to subscribe for and purchase, and Tailwind agreed to issue and sell to such investors, on the closing date of the Business Combination substantially concurrently with the closing of the Business Combination, an aggregate of 16,000,000 shares of New QOMPLX Common Stock for a purchase price of $10.00 per share, for aggregate gross proceeds of $160,000,000 (the “PIPE Financing”) and (B) Tailwind agreed to issue an additional 835,539 shares of New QOMPLX Common Stock to Cannae in exchange for its agreement to act as the lead investor in the PIPE Financing with a $50,000,000 commitment. Pursuant to the Bridge Financing Agreement, QOMPLX has agreed to issue convertible notes (the “Notes”) to the investors party thereto in an aggregate principal amount of $20,000,000 and Tailwind has agreed to, subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the closing of the Business Combination, assume the Notes and satisfy and discharge the principal amount and accrued and unpaid interest under each Note as of such time by way of issuance of one share of New QOMPLX Common Stock for every $10.00 of principal amount and accrued and unpaid interest payable on a Note as of such time.
The closing of the PIPE Financing is contingent upon, among other things, the substantially concurrent consummation of the Business Combination. The Financing Agreements provide that Tailwind will grant the investors in the PIPE Financing and the Bridge Financing certain customary registration rights.
A copy of the forms of Subscription Agreement are filed with this Current Report on Form 8-K as Exhibit 10.3 and 10.4 and is incorporated herein by reference, and the foregoing description of the Subscription Agreements is qualified in its entirety by reference thereto.
A copy of the Bridge Financing Agreement is filed with this Current Report on Form 8-K as Exhibit 10.5 and is incorporated herein by reference, and the foregoing description of the Subscription Agreements is qualified in its entirety by reference thereto.
Transaction Support Agreements
Within one business day of the signing of the Business Combination Agreement, certain stockholders of QOMPLX are required to enter into a Transaction Support Agreement (collectively, the “Transaction Support Agreements”) with Tailwind and the Company, pursuant to which such stockholders of QOMPLX have agreed to, among other things, (i) support and vote in favor of the Business Combination Agreement and the transactions contemplated thereby (including the Business Combination), and (ii) be bound by certain other covenants and agreements related to the Business Combination, including a restriction on transfers with respect to his, her or its shares in QOMPLX prior to the closing of the Business Combination.
A copy of the form of Transaction Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.6 and is incorporated herein by reference, and the foregoing description of the Transaction Support Agreements is qualified in its entirety by reference thereto.
Investor Rights Agreement
Concurrently with the execution of the Business Combination Agreement, Tailwind, Tailwind Sponsor and certain QOMPLX stockholders entered into an investor rights agreement (the “Investor Rights Agreement”) pursuant to which, among other things, each of the Tailwind Sponsor and the certain QOMPLX stockholders (i) agreed not to effect any sale or distribution of New QOMPLX equity securities during the lock-up period described therein and (ii) will be granted certain customary registration rights, in each case subject to, and conditioned upon and effective as of, the closing of the Business Combination.
A copy of the Investor Rights Agreement is filed with this Current Report on Form 8-K as Exhibit 10.6 and is incorporated herein by reference, and the foregoing description of the Investor Rights Agreement is qualified in its entirety by reference thereto.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The shares of New QOMPLX Common Stock to be offered and sold in connection with the PIPE Financing and the Bridge Financing have not been registered under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) thereof.
Item 7.01 Regulation FD Disclosure.
On March 1, 2021, Tailwind and QOMPLX issued a press release announcing their entry into the Business Combination Agreement. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
Furnished as Exhibits 99.2 and 99.3 hereto and incorporated into this Item 7.01 by reference is the investor presentation that Tailwind and QOMPLX have prepared for use in connection with the announcement of the Business Combination and a transcript of the investor presentation.
On March 1, 2021, Jason Crabtree, the Chief Executive Officer and Co-Founder of QOMPLX and William P. Foley II, Chairman of Cannae Holdings, Inc. appeared in a Bloomberg online story to discuss the Business Combination. The online story is attached hereto as Exhibit 99.4 and incorporated herein by reference.
The foregoing (including Exhibits 99.1, 99.2, 99.3 and 99.4) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
Additional Information
In connection with the Business Combination, Tailwind intends to file with the U.S. Securities and Exchange Commission’s (“SEC”) a Registration Statement, which will include a preliminary prospectus and preliminary proxy statement. Tailwind will mail a definitive proxy statement/final prospectus and other relevant documents to its stockholders. This communication is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that Tailwind will send to its stockholders in connection with the Business Combination. Investors and security holders of Tailwind are advised to read, when available, the proxy statement/prospectus in connection with Tailwind’s solicitation of proxies for its extraordinary general meeting of stockholders to be held to approve the Business Combination (and related matters) because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination. The definitive proxy statement/final prospectus will be mailed to stockholders of Tailwind as of a record date to be established for voting on the Business Combination. Stockholders will also be able to obtain copies of the proxy statement/prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: 1545 Courtney Avenue, Los Angeles, CA 90046.
Participants in the Solicitation
Tailwind, QOMPLX and their respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Tailwind’s stockholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Tailwind’s directors and officers in Tailwind’s filings with the SEC, including the Registration Statement to be filed with the SEC by Tailwind, which will include the proxy statement of Tailwind for the Business Combination. The names and interests of QOMPLX’s directors and executive officers will also be in the Registration Statement to be filed with the SEC by Tailwind, which will include the proxy statement of Tailwind for the Business Combination.
Forward Looking Statements
Certain statements made herein are not historical facts but are forward-looking statements for purposes of the safe harbor provisions under The Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the Business Combination between Tailwind and QOMPLX, the estimated or anticipated future results and benefits of the combined company following the Business Combination, including the likelihood and ability of the parties to successfully consummate the Business Combination, future opportunities for the combined company, and other statements that are not historical facts. These statements are based on the current expectations of Tailwind’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Tailwind and QOMPLX. These statements are subject to a number of risks and uncertainties regarding Tailwind’s businesses and the Business Combination, and actual results may differ materially. These risks and uncertainties include, but are not limited to, general economic, political and business conditions generally and competitive factors impacting the businesses of any of Tailwind, QOMPLX, Sentar and RPC Tyche; the inability of the parties to consummate the Business Combination or the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination Agreement; the inability of QOMPLX to consummate a Pipeline Acquisition or the occurrence of any event, change or other circumstances that could give rise to the termination of the transaction agreement for such Pipeline Acquisition; the outcome of any legal proceedings that may be instituted against the parties following the announcement of the Business Combination; the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the Business Combination; the risk that the approval of the stockholders of Tailwind or QOMPLX for the potential transaction is not obtained; failure to realize the anticipated benefits of the Business Combination, including as a result of a delay in consummating the potential transaction or difficulty in integrating the businesses of Tailwind, QOMPLX, Sentar and RPC Tyche; the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; the ability of the combined company to grow and manage growth profitably and retain its key employees; the amount of redemption requests made by Tailwind’s stockholders; the inability to obtain or maintain the listing of the post-acquisition company’s securities on NYSE following the Business Combination; costs related to the Business Combination; inaccuracies for any reason in the estimates of expenses and profitability and the projected financial information (including on a pro forma basis giving effect to the acquisitions of Hyperion Gray, Sentar and RPC Tyche) for QOMPLX; and those factors discussed in Tailwind’s final prospectus relating to its initial public offering, dated September 3, 2020, and other filings with the SEC. There may be additional risks that Tailwind presently does not know or that Tailwind currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements provide Tailwind’s expectations, plans or forecasts of future events and views as of the date of this communication. Tailwind anticipates that subsequent events and developments will cause Tailwind’s assessments to change. However, while Tailwind may elect to update these forward-looking statements at some point in the future, Tailwind specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing Tailwind’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Disclaimer
This communication is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
† |
Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. |
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 hereunto duly authorized.
Date: March 2, 2021 | TAILWIND ACQUISITION CORP. | |
By: | /s/ Chris Hollod | |
Name: | Chris Hollod | |
Title: | Chief Executive Officer |
Exhibit 2.1
Execution Version
BUSINESS COMBINATION AGREEMENT
BY AND AMONG
TAILWIND ACQUISITION CORP.,
COMPASS MERGER SUB, INC.,
QOMPLX, INC.
AND
RATIONEM, LLC,
IN ITS CAPACITY AS THE COMPANY STOCKHOLDER REPRESENTATIVE
DATED AS OF MARCH 1, 2021
TABLE OF CONTENTS
Page
ARTICLE 1 CERTAIN DEFINITIONS | 4 | |
Section 1.1 | Definitions | 4 |
ARTICLE 2 MERGER | 24 | |
Section 2.1 | The Merger | 24 |
Section 2.2 | Closing of the Transactions Contemplated by this Agreement | 26 |
Section 2.3 | Pipeline Acquisition Funds Flow; Allocation Schedule | 26 |
Section 2.4 | Treatment of Company Options | 28 |
Section 2.5 | Company Stockholder Deliverables | 28 |
Section 2.6 | Dissenting Stockholder | 31 |
Section 2.7 | Withholding | 31 |
ARTICLE 3 REPRESENTATIONS AND WARRANTIES RELATING TO THE GROUP COMPANIES | 31 | |
Section 3.1 | Organization and Qualification | 31 |
Section 3.2 | Capitalization of the Group Companies | 32 |
Section 3.3 | Authority | 33 |
Section 3.4 | Financial Statements; Undisclosed Liabilities | 34 |
Section 3.5 | Consents and Requisite Governmental Approvals; No Violations | 35 |
Section 3.6 | Permits | 36 |
Section 3.7 | Material Contracts | 36 |
Section 3.8 | Absence of Changes | 38 |
Section 3.9 | Litigation | 39 |
Section 3.10 | Compliance with Applicable Law | 39 |
Section 3.11 | Employee Plans | 39 |
Section 3.12 | Environmental Matters | 41 |
Section 3.13 | Intellectual Property | 41 |
Section 3.14 | Labor Matters | 44 |
Section 3.15 | Insurance | 44 |
Section 3.16 | Tax Matters | 44 |
Section 3.17 | Brokers | 46 |
Section 3.18 | Real and Personal Property | 46 |
Section 3.19 | Transactions with Affiliates | 46 |
Section 3.20 | Data Privacy and Security | 47 |
Section 3.21 | Compliance with International Trade & Anti-Corruption Laws | 48 |
Section 3.22 | Information Supplied | 48 |
Section 3.23 | Investigation; No Other Representations. | 49 |
Section 3.24 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 49 |
ARTICLE 4 REPRESENTATIONS AND WARRANTIES RELATING TO THE TAILWIND PARTIES | 50 | |
Section 4.1 | Organization and Qualification | 50 |
Section 4.2 | Authority | 50 |
Section 4.3 | Consents and Requisite Governmental Approvals; No Violations | 51 |
i
Section 4.4 | Brokers | 51 |
Section 4.5 | Information Supplied | 52 |
Section 4.6 | Capitalization of the Tailwind Parties | 52 |
Section 4.7 | SEC Filings | 53 |
Section 4.8 | Trust Account | 54 |
Section 4.9 | Transactions with Affiliates | 54 |
Section 4.10 | Litigation | 55 |
Section 4.11 | Compliance with Applicable Law | 55 |
Section 4.12 | Merger Sub Activities | 55 |
Section 4.13 | Internal Controls; Listing; Financial Statements | 55 |
Section 4.14 | No Undisclosed Liabilities | 56 |
Section 4.15 | Tax Matters | 57 |
Section 4.16 | Compliance with International Trade & Anti-Corruption Laws | 58 |
Section 4.17 | Investigation; No Other Representations | 58 |
Section 4.18 | EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES | 59 |
ARTICLE 5 COVENANTS | 60 | |
Section 5.1 | Conduct of Business of the Company | 60 |
Section 5.2 | Efforts to Consummate | 63 |
Section 5.3 | Confidentiality and Access to Information | 65 |
Section 5.4 | Public Announcements | 66 |
Section 5.5 | Tax Matters | 67 |
Section 5.6 | Exclusive Dealing | 67 |
Section 5.7 | Preparation of Registration Statement / Proxy Statement | 68 |
Section 5.8 | Tailwind Stockholder Approval | 68 |
Section 5.9 | Merger Sub Stockholder Approval | 69 |
Section 5.10 | Conduct of Business of Tailwind | 69 |
Section 5.11 | NYSE Listing | 70 |
Section 5.12 | Trust Account | 70 |
Section 5.13 | Transaction Support Agreements; Company Stockholder Approval | 70 |
Section 5.14 | Tailwind Indemnification; Directors’ and Officers’ Insurance | 71 |
Section 5.15 | Company Indemnification; Directors’ and Officers’ Insurance | 71 |
Section 5.16 | Post-Closing Directors and Officers | 72 |
Section 5.17 | Required Financials | 73 |
Section 5.18 | Tailwind Incentive Equity Plan | 74 |
Section 5.19 | FIRPTA Certificates | 74 |
Section 5.20 | Company Related Party Transactions | 74 |
Section 5.21 | Pipeline Acquisitions | 74 |
Section 5.22 | Tailwind Governing Documents | 75 |
Section 5.23 | Lock-Up | 75 |
Section 5.24 | Joinder to Investor Rights Agreement | 76 |
Section 5.25 | Company Name Change | 76 |
Section 5.26 | PIPE Subscription Agreements | 76 |
ARTICLE 6 CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT | 77 | |
Section 6.1 | Conditions to the Obligations of the Parties | 77 |
ii
Section 6.2 | Other Conditions to the Obligations of the Tailwind Parties | 77 |
Section 6.3 | Other Conditions to the Obligations of the Company | 78 |
Section 6.4 | Frustration of Closing Conditions | 78 |
ARTICLE 7 TERMINATION | 79 | |
Section 7.1 | Termination | 79 |
Section 7.2 | Effect of Termination | 79 |
ARTICLE 8 MISCELLANEOUS | 80 | |
Section 8.1 | Non-Survival | 80 |
Section 8.2 | Entire Agreement; Assignment | 80 |
Section 8.3 | Amendment | 80 |
Section 8.4 | Notices | 80 |
Section 8.5 | Governing Law | 81 |
Section 8.6 | Fees and Expenses | 81 |
Section 8.7 | Construction; Interpretation | 81 |
Section 8.8 | Exhibits and Schedules | 81 |
Section 8.9 | Parties in Interest | 82 |
Section 8.10 | Severability | 82 |
Section 8.11 | Counterparts; Electronic Signatures | 82 |
Section 8.12 | Knowledge of Company; Knowledge of Tailwind | 82 |
Section 8.13 | No Recourse | 82 |
Section 8.14 | Extension; Waiver | 82 |
Section 8.15 | Waiver of Jury Trial | 83 |
Section 8.16 | Submission to Jurisdiction | 83 |
Section 8.17 | Remedies | 83 |
Section 8.18 | Trust Account Waiver | 84 |
Section 8.19 | Company Stockholder Representative | 84 |
ANNEXES AND EXHIBITS
Annex A-1 | Other PIPE Investors |
Annex A-2 | Bridge Investors |
Annex B | Supporting Company Stockholders |
Exhibit A-1 | Form of Cannae PIPE Subscription Agreement |
Exhibit A-2 | Form of Other PIPE Subscription Agreement |
Exhibit A-3 | Form of Bridge Financing Agreement |
Exhibit B | Form of Investor Rights Agreement |
Exhibit C | Form of Transaction Support Agreement |
Exhibit D | Form of Letter of Transmittal |
Exhibit E | RPC Tyche Purchase Agreement |
Exhibit F | Sentar Purchase Agreement |
Exhibit G | Form of Post-Closing Tailwind Certificate of Incorporation |
Exhibit H | Form of Post-Closing Tailwind Bylaws |
Exhibit I | Form of Incentive Equity Plan |
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BUSINESS COMBINATION AGREEMENT
This BUSINESS COMBINATION AGREEMENT (this “Agreement”), dated as of March 1, 2021, is made by and among Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), QOMPLX, Inc., a Delaware corporation (the “Company”), and Rationem, LLC, a Delaware limited liability company, in its capacity as the representative of the Company Stockholders as set forth herein (the “Company Stockholder Representative”). Tailwind, Merger Sub, the Company and the Company Stockholder Representative shall be referred to herein from time to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein have the meanings set forth in Section 1.1.
WHEREAS, (a) Tailwind is a blank check company incorporated as a Delaware corporation on May 29, 2020 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses, and (b) Merger Sub is, as of the date of this Agreement, a wholly-owned Subsidiary of Tailwind that was formed for purposes of consummating the transactions contemplated by this Agreement and the applicable Ancillary Documents;
WHEREAS, pursuant to the Governing Documents of Tailwind, Tailwind is required to provide an opportunity for its stockholders to have their outstanding Tailwind Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the Tailwind Stockholder Approval;
WHEREAS, as of the date of this Agreement, Tailwind Sponsor LLC, a Delaware limited liability company (the “Tailwind Sponsor”), owns 8,355,393 Tailwind Class B Shares;
WHEREAS, concurrently with the execution of this Agreement, the Tailwind Sponsor, Tailwind and the Company are entering into the sponsor letter agreement (the “Sponsor Letter Agreement”), pursuant to which the Tailwind Sponsor has agreed to (a) vote in favor of this Agreement and the transactions contemplated hereby (including the Merger), (b) waive, subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, any adjustment to the conversion ratio with respect to the Tailwind Class B Shares set forth in the Governing Documents of Tailwind or any other anti-dilution or similar protection with respect to the Tailwind Class B Shares (in each case, whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise), and (c) subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, transfer, surrender and forfeit to Tailwind 835,539 Tailwind Class B Shares for no consideration, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement;
WHEREAS, on the Closing Date, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, the Company will be a wholly-owned Subsidiary of Tailwind, and each Company Share will be automatically converted as of the Effective Time into the right to receive a portion of the Adjusted Transaction Share Consideration, in each case, on the terms and subject to the conditions set forth in this Agreement and in accordance with Section 251 of the General Corporation Law of the State of Delaware (the “DGCL”);
WHEREAS, concurrently with the execution of this Agreement, Cannae Holdings, LLC, a Delaware limited liability company (the “Cannae PIPE Investor”), is entering into a subscription agreement, substantially in the form attached hereto as Exhibit A-1 (the “Cannae Subscription Agreement”), pursuant to which, among other things, the Cannae PIPE Investor has agreed to subscribe for and purchase on the Closing Date, and Tailwind has agreed to issue and sell to the Cannae PIPE Investor on the Closing Date, the number of Tailwind Shares set forth in the Cannae Subscription Agreement in exchange for a purchase price of $50,000,000 (the “Cannae PIPE Financing Amount”), on the terms and subject to the conditions set forth in the Cannae Subscription Agreement;
WHEREAS, concurrently with the execution of this Agreement, the investors set forth on Annex A-1 hereto (the “Other PIPE Investors”) are each entering into a subscription agreement, substantially in the form attached hereto as Exhibit A-2 (collectively, the “Other PIPE Subscription Agreements”), pursuant to which, among other things, each Other PIPE Investor has agreed to subscribe for and purchase on the Closing Date, and Tailwind has agreed to issue and sell to each such PIPE Investor on the Closing Date, the number of Tailwind Shares set forth in the applicable Other PIPE Subscription Agreement in exchange for the purchase price set forth therein (the aggregate purchase price under all Other PIPE Subscription Agreements, collectively, the “Other PIPE Financing Amount”), in each case, on the terms and subject to the conditions set forth in the applicable Other PIPE Subscription Agreement;
WHEREAS, concurrently with the execution of this Agreement, the investors set forth on Annex A-2 hereto (the “Bridge Investors”) are each entering into a bridge financing agreement, substantially in the form attached hereto as Exhibit A-3 (collectively, the “Bridge Financing Agreement”), pursuant to which, among other things, (a) each Bridge Investor has agreed to purchase for cash from the Company on the date hereof a convertible promissory note issued by the Company in the principal amount set forth in the applicable Bridge Financing Agreement and (b) each Bridge Investor, the Company and Tailwind has agreed that subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, Tailwind will assume the convertible promissory note issued by the Company under the applicable Bridge Financing Agreement and satisfy and discharge the principal amount and accrued and unpaid interest under the Bridge Financing Agreement as of such time (such principal amount, the “Bridge Financing Amount”, and such accrued and unpaid interest, “Bridge Financing Interest Amount”) by way of issuance of Tailwind Shares to each Bridge Investor, with the portion of the Tailwind Shares with a value (determined based on the Tailwind Share Value) equal to the Bridge Financing Amount being deemed to satisfy a portion of the amount that such Bridge Investor would have funded in respect of the PIPE Financing but for the funding of such amount under the Bridge Financing Agreement on the date hereof (i.e., in addition to, and not part of, the Adjusted Transaction Share Consideration) and the portion of the Tailwind Shares with a value (determined based on the Tailwind Share Value) equal to the Bridge Financing Interest Amount (i.e., such portion to be included in, and part of, the Adjusted Transaction Share Consideration in accordance with the definition thereof), in each case, on the terms and subject to the conditions set forth in the Bridge Financing Agreement and this Agreement;
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WHEREAS, concurrently with the execution of this Agreement, each of Tailwind, the Tailwind Sponsor and the Company Stockholders set forth on Annex B hereto (the “Supporting Company Stockholders”) are entering into an investor rights agreement, substantially in the form attached hereto as Exhibit B (the “Investor Rights Agreement”), pursuant to which, among other things, subject to, and conditioned upon the occurrence of, and effective as of, the Effective Time, each of the Tailwind Sponsor, the Supporting Company Stockholders and any Company Stockholders that become party to the Investor Rights Agreement in accordance with the terms hereof and thereof (a) has agreed and acknowledged that certain Tailwind Shares (including the Tailwind Shares issuable upon exercise of Rollover Options) held by the Company Stockholders party thereto or the Tailwind Sponsor immediately following the Effective Time shall, in each case, be subject to the lock-up provisions described in Section 7.9 of the Post-Closing Tailwind Bylaws and (b) will be granted certain registration rights with respect to their respective Tailwind Shares that are subject to the lock-up provisions described therein, in each case, on the terms and subject to the conditions set forth therein;
WHEREAS, the board of directors of Tailwind (the “Tailwind Board”) has (a) determined that it is in the best interests of Tailwind and the stockholders of Tailwind, and declared it advisable, to enter into this Agreement, the Ancillary Documents to which Tailwind is or will be a party and the transactions contemplated hereby and thereby (including the Merger), (b) approved this Agreement, the Ancillary Documents to which Tailwind is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (c) recommended, among other things, approval of this Agreement and the transactions contemplated by this Agreement (including the Merger) by the holders of Tailwind Shares entitled to vote thereon;
WHEREAS, the board of directors of Merger Sub has approved this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger);
WHEREAS, Tailwind, as the sole stockholder of Merger Sub, will as promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, approve this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger);
WHEREAS, the board of directors of the Company (the “Company Board”) has (a) determined that it is in the best interests of the Company and the stockholders of the Company, and declared it advisable, to enter into this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger), (b) approved this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) and (c) recommended, among other things, the approval of this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) by the holders of Company Shares entitled to vote thereon;
WHEREAS, as promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement, each Supporting Company Stockholder will duly execute and deliver to Tailwind a transaction support agreement, substantially in the form attached hereto as Exhibit C (collectively, the “Transaction Support Agreements”), pursuant to which each such Supporting Company Stockholder will agree to, among other things, (a) support and vote in favor of this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger), (b) take, or cause to be taken, any actions necessary or advisable to cause certain agreements to be terminated effective as of the Closing and (c) the appointment of Rationem, LLC, a Delaware limited liability company, as the Company Stockholder Representative; and
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WHEREAS, each of the Parties intends for U.S. federal income tax purposes that (a) this Agreement constitutes a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulations promulgated thereunder and (b) the Merger constitutes a transaction treated as a “reorganization” within the meaning of Section 368(a) of the Code (clauses (a) and (b), the “Intended Tax Treatment”).
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
Article 1
CERTAIN DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.
“2019 Audited Financial Statements” has the meaning set forth in Section 3.4(a).
“2020 Unaudited Financial Statements” has the meaning set forth in Section 3.4(a).
“Additional Tailwind SEC Reports” has the meaning set forth in Section 4.7.
“Adjusted Equity Value” means (a) the Equity Value, plus (b) the Aggregate Vested Company Option Exercise Price, less (c) the Aggregate Bridge Financing Interest Amount.
“Adjusted Transaction Share Consideration” means an aggregate number of Tailwind Shares equal to (a) the Adjusted Equity Value, divided by (b) the Tailwind Share Value.
“Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto. The Parties acknowledge and agree that Sentar, RPC Tyche and their respective Affiliates shall not be deemed to be Affiliates of any Group Company as of the date hereof or at any other time prior to the Effective Time for purposes of this Agreement or any Ancillary Document.
“Aggregate Bridge Financing Amount” means the aggregate Bridge Financing Amount under the Bridge Financing Agreement.
“Aggregate Bridge Financing Interest Amount” means the aggregate Bridge Financing Interest Amount under the Bridge Financing Agreement.
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“Aggregate Closing PIPE Proceeds” means the aggregate cash proceeds actually received (or deemed received) by the Tailwind Parties in respect of the PIPE Financing (whether prior to or on the Closing Date). For the avoidance of doubt, any cash proceeds received (or deemed received) by Tailwind or any of its Affiliates in respect of any amounts funded under a PIPE Subscription Agreement prior to the Closing Date shall constitute, and be taken into account for purposes of determining, the Aggregate Closing PIPE Proceeds (without, for the avoidance of doubt, giving effect to, or otherwise taking into account the use of any such proceeds).
“Aggregate Pipeline Acquisitions Cash Consideration” means the sum of (a) the aggregate cash purchase price paid or payable by or on behalf of the Group Companies in connection with the transactions contemplated by the RPC Tyche Purchase Agreement (including, for the avoidance of doubt, (i) any transaction expenses, change of control, retention, transaction or similar bonuses or payments, debt or debt-like items or any other payments, liabilities or amounts of RPC Tyche, any of its Affiliates or any of their respective equityholders paid or payable by or on behalf of the Group Companies in connection with the closing of such transaction and (ii) any escrow amounts, purchase price holdbacks, equityholder representative expense amounts or other similar amounts), and (b) the aggregate cash purchase price paid or payable by or on behalf of the Group Companies in connection with the transactions contemplated by the Sentar Purchase Agreement (including, for the avoidance of doubt, (i) any transaction expenses, change of control, retention, transaction or similar bonuses or payments, debt or debt-like items or any other payments, liabilities or amounts of Sentar, any of its Affiliates or any of their respective affiliates paid or payable by or on behalf of the Group Companies in connection with the closing of such transaction and (ii) any escrow amounts, purchase price holdbacks, equityholder representative expense amounts or other similar amounts). Notwithstanding the foregoing or anything to the contrary herein, in no event shall the Aggregate Pipeline Acquisitions Cash Consideration (A) include the amount of any cash “earn-out” or other contingent purchase price or indemnification obligations potentially payable by or on behalf of the Group Companies pursuant to any Pipeline Purchase Agreement or (B) exceed the Aggregate Pipeline Acquisitions Cash Purchase Price Cap.
“Aggregate Pipeline Acquisitions Cash Purchase Price Cap” means $200,000,000.
“Aggregate Transaction Proceeds” means an amount equal to (a) the sum of (i) the aggregate cash proceeds available for release to any Tailwind Party (or any designees thereof) from the Trust Account in connection with the transactions contemplated hereby (after, for the avoidance of doubt, giving effect to the Tailwind Stockholder Redemption), (ii) the Aggregate Closing PIPE Proceeds and (iii) the Aggregate Bridge Financing Amount, minus (b) the Aggregate Pipeline Acquisitions Cash Consideration in an amount up to the Aggregate Pipeline Acquisitions Cash Purchase Price Cap.
“Aggregate Vested Company Option Exercise Price” means the aggregate exercise price that would be paid to the Company in respect of all Vested Company Options as of immediately prior to the Effective Time, if all such Vested Company Options were exercised in full immediately prior to the Effective Time (without giving effect to any “net” exercise or similar concept).
“Agreement” has the meaning set forth in the introductory paragraph to this Agreement.
“AICPA” means the American Institute of Certified Public Accountants.
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“Allocation Schedule” has the meaning set forth in Section 2.3(b).
“Ancillary Documents” means the Investor Rights Agreement, Sponsor Letter Agreement, the PIPE Subscription Agreements, the Bridge Financing Agreement, the Transaction Support Agreements, the Letters of Transmittal and each other agreement, document, instrument and/or certificate contemplated by this Agreement executed or to be executed in connection with the transactions contemplated hereby.
“Anti-Corruption Laws” means, collectively, (a) the U.S. Foreign Corrupt Practices Act (FCPA), (b) the UK Bribery Act 2010 and (c) any other anti-bribery or anti-corruption Laws or Orders related to combatting bribery, corruption and money laundering.
“Bridge Financing Agreement” has the meaning set forth in the recitals to this Agreement.
“Bridge Financing Amount” has the meaning set forth in the recitals to this Agreement.
“Bridge Financing Interest Amount” has the meaning set forth in the recitals to this Agreement.
“Bridge Investor” has the meaning set forth in the recitals to this Agreement.
“Business” means the business of, directly or indirectly, developing, operating or providing enterprise operating systems or other platforms for use in Data analytics or integration, business modeling or decision making, cyber-security, risk management, the insurance related decision making and risk management (including automated underwriting, insurance modeling and insurance-related Data management), the financial services industry or the public sector or any activities, services or products incidental or attendant thereto.
“Business Combination Proposal” has the meaning set forth in Section 5.8.
“Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York and Los Angeles, California are open for the general transaction of business.
“Cannae Designee” has the meaning set forth in Section 5.16(d).
“Cannae PIPE Financing Amount” has the meaning set forth in the recitals to this Agreement.
“Cannae PIPE Investor” has the meaning set forth in the recitals to this Agreement.
“Cannae Subscription Agreement” has the meaning set forth in the recitals to this Agreement.
“CBA” means any collective bargaining agreement or similar Contract with any labor union, labor organization, or works council.
“Certificate of Merger” has the meaning set forth in Section 2.1(b).
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“Certificates” has the meaning set forth in Section 2.1(g).
“Change of Control Payment” means (a) any success, change of control, retention, transaction bonus or other similar payment or amount to any Person as a result of, or in connection with, this Agreement, any Ancillary Document, any Pipeline Purchase Agreement or the transactions contemplated hereby or thereby, including, for the avoidance of doubt, any “double trigger” bonus, payment or amount that may become payable when combined with or followed by one or more additional facts, matters or events, or (b) any payments made or required to be made pursuant to or in connection with or upon termination of, or any fees, expenses or other payments owing or that will become owing in respect of, any Company Related Party Transaction (in the case of each of clause (a) and (b), regardless of whether paid or payable prior to, on or after the Closing Date or in connection with or otherwise related to this Agreement, any Ancillary Document, any Pipeline Purchase Agreement or the transactions contemplated hereby or thereby).
“Closing” has the meaning set forth in Section 2.2.
“Closing Date” has the meaning set forth in Section 2.2.
“Closing Filing” has the meaning set forth in Section 5.4(b).
“Closing Press Release” has the meaning set forth in Section 5.4(b).
“COBRA” means Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code.
“Code” means the U.S. Internal Revenue Code of 1986.
“Company” has the meaning set forth in the introductory paragraph to this Agreement.
“Company Acquisition Proposal” means (a) any direct or indirect acquisition, in one or a series of transactions, (i) of or with the Company or any of its controlled Affiliates or (ii) of all or a material portion of assets, Equity Securities or businesses of the Company or any of its controlled Affiliates (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, purchase of assets, tender offer or otherwise), or (b) any equity or similar investment in the Company or any of its controlled Affiliates. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents, the Pipeline Purchase Agreements or the transactions contemplated hereby or thereby shall constitute a Company Acquisition Proposal.
“Company Board” has the meaning set forth in the recitals to this Agreement.
“Company Board Recommendation” has the meaning set forth in Section 5.13.
“Company Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of the Company.
“Company CEO Designee” has the meaning set forth Section 5.16(c).
“Company Closing Financial Statements” has the meaning set forth in Section 3.4(b).
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“Company Common Shares” means shares of common stock, par value $0.0001 per share, of the Company designated as “Common Stock” pursuant to the Company Certificate of Incorporation.
“Company D&O Persons” has the meaning set forth in Section 5.15(a).
“Company Designee” has the meaning set forth in Section 5.16(b).
“Company Disclosure Schedules” means the disclosure schedules to this Agreement delivered to Tailwind by the Company on the date of this Agreement.
“Company Equity Award” means, as of any determination time, each Company Option and each other award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to receive any Equity Security of any Group Company under any Company Equity Plan or otherwise that is outstanding.
“Company Equity Plan” means the Fractal Industries Inc. 2015 Equity Incentive Plan and each other plan that provides for the award to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company of rights of any kind to receive Equity Securities of any Group Company or benefits measured in whole or in part by reference to Equity Securities of any Group Company.
“Company Equityholders” means, collectively, the Company Stockholders and the holders of Company Equity Awards as of any determination time prior to the Effective Time.
“Company Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to a Tailwind Party pursuant to the terms this Agreement or any Ancillary Document) by any Group Company in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of any Group Company, and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any Group Company pursuant to this Agreement or any Ancillary Document.
“Company Fundamental Representations” means the representations and warranties set forth in Section 3.1a) and Section 3.1b) (Organization and Qualification), Sections 3.2a) through (d) (Capitalization of the Group Companies), Section 3.3 (Authority), Section 3.8(a) and Section 3.8(b)(iii) (Absence of Changes) and Section 3.17 (Brokers).
“Company IT Systems” means all Company Products, computer systems, Software and hardware, communication systems, servers, network equipment and databases (including that are used to Process Data), information, and functions contained therein or transmitted thereby, and related documentation, including any outsourced systems and processes, in each case, relied on, owned, licensed or leased by a Group Company.
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“Company Licensed Intellectual Property” means Intellectual Property Rights owned by any Person (other than a Group Company) that is licensed to any Group Company.
“Company Material Adverse Effect” means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on (a) the business, assets, liabilities, properties, conditions (financial or otherwise) or results of operations of the Group Companies, taken as a whole, or (b) the ability of the Company to consummate the Merger in accordance with the terms of this Agreement; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur: any adverse change, event, effect or occurrence arising after the date of this Agreement to the extent resulting from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes in any applicable Laws, (v) any change, event, effect or occurrence that is generally applicable to the industries or markets in which any Group Company operates, (vi) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of any Group Company with employees, customers, investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors or other third parties related thereto (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 3.5(b) to the extent that its purpose is to address the consequences resulting from the public announcement or pendency or consummation of the transactions contemplated by this Agreement or the condition set forth in Section 6.2(a) to the extent it relates to such representations and warranties), (vii) any failure by any Group Company to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vi) or (viii)), or (viii) any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics, pandemics (including COVID-19) or quarantines, acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing; provided, however, that any change, event, effect or occurrence resulting from a matter described in any of the foregoing clauses (i) through (v) or (viii) may be taken into account in determining whether a Company Material Adverse Effect has occurred or is reasonably likely to occur to the extent such change, event, effect or occurrence has had or would reasonably be expected to have a disproportionate adverse effect on the Group Companies, taken as a whole, relative to other participants operating in the industries or markets in which the Group Companies operate.
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“Company Option” means, as of any determination time, each option to purchase Company Common Shares that is outstanding and unexercised, whether granted under a Company Equity Plan or otherwise.
“Company Owned Intellectual Property” means all Intellectual Property Rights that are owned by the Group Companies.
“Company Preferred Shares” means, collectively, (a) Company Series A-1A Preferred Shares, (b) Company Series A-1B Preferred Shares, (c) Company Series A-2 Preferred Shares, (d) Company Series A-3 Preferred Shares and (e) Company Series A-4 Preferred Shares.
“Company Product” means any Software products, tools, or applications, either complete or under development, (a) that have been, are currently, or are currently intended to be, developed, marketed, sold, licensed, distributed, hosted, made available, or otherwise commercialized by any Group Company, or (b) from which any Group Company recognizes any revenue (including revenue associated with maintenance or service agreements).
“Company Registered Intellectual Property” means all Registered Intellectual Property owned or purported to be owned by, or filed by or in the name of, any Group Company.
“Company Related Party” has the meaning set forth in Section 3.19.
“Company Related Party Transactions” has the meaning set forth in Section 3.19.
“Company Series A-1A Preferred Shares” means shares of preferred stock, par value $0.0001 per share, of the Company designated as “Series A-1A Preferred Stock” pursuant to the Company Certificate of Incorporation.
“Company Series A-1B Preferred Shares” means shares of preferred stock, par value $0.0001 per share, of the Company designated as “Series A-1B Preferred Stock” pursuant to the Company Certificate of Incorporation.
“Company Series A-2 Preferred Shares” means shares of preferred stock, par value $0.0001 per share, of the Company designated as “Series A-2 Preferred Stock” pursuant to the Company Certificate of Incorporation.
“Company Series A-3 Preferred Shares” means shares of preferred stock, par value $0.0001 per share, of the Company designated as “Series A-3 Preferred Stock” pursuant to the Company Certificate of Incorporation.
“Company Series A-4 Preferred Shares” means shares of preferred stock, par value $0.0001 per share, of the Company designated as “Series A-4 Preferred Stock” pursuant to the Company Certificate of Incorporation.
“Company Shares” means, collectively, the Company Common Shares and the Company Preferred Shares.
“Company Signing Financial Statements” has the meaning set forth in Section 3.4(a).
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“Company Stockholder Representative” has the meaning set forth in the introductory paragraph to this Agreement.
“Company Stockholder Written Consent” has the meaning set forth in Section 5.13(b).
“Company Stockholder Written Consent Deadline” has the meaning set forth in Section 5.13(b).
“Company Stockholders” means, collectively, the holders of Company Shares as of any determination time prior to the Effective Time.
“Company Stockholders Agreements” means, collectively, (a) the Amended and Restated Investors’ Rights Agreement, dated as of July 8, 2019, by and among the Company and the Company Stockholders party thereto, (b) the Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of July 8, 2019, by and among the Company and the Company Stockholders party thereto and (c) the Company Second Amended and Restated Voting Agreement, dated as of May 19, 2020, by and among the Company and the Company Stockholders party thereto.
“Confidentiality Agreement” means that certain Mutual Nondisclosure Agreement, dated as of December 15, 2020, by and between the Company and Tailwind.
“Consent” means any notice, authorization, qualification, registration, filing, notification, waiver, order, consent or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.
“Contract” or “Contracts” means any agreement, contract, license, lease, obligation, undertaking or other commitment or arrangement that is legally binding upon a Person or any of his, her or its properties or assets.
“Copyrights” has the meaning set forth in the definition of Intellectual Property Rights.
“COVID-19” means SARS-CoV-2 or COVID-19 and any evolutions thereof or related or associated epidemics, pandemic or disease outbreaks.
“Creator” has the meaning set forth in Section 3.13(d).
“Data” means data, databases, data repositories, data lakes and collections of data.
“DCSA” means, collectively, the Defense Counterintelligence and Security Agency and any other applicable cognizant security agency.
“Designated Material Contracts” has the meaning set forth in Section 5.1(b)(vii).
“DGCL” has the meaning set forth in the recitals to this Agreement.
“Dissenting Shares” has the meaning set forth in Section 2.6.
“Dissenting Stockholder” has the meaning set forth in Section 2.6.
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“Effective Time” has the meaning set forth in Section 2.1(b).
“Employee Benefit Plan” means (a) each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA), (b) each pension, retirement, profit-sharing, savings, health, welfare, bonus, incentive, commission, stock option, equity or equity-based, deferred compensation, severance, retention, accident, disability, employment, individual consulting, change of control, stock purchase, restricted stock, separation, vacation, paid time off, fringe benefit plan, program, policy or Contract not described in clause (a), and (c) each other benefit or compensatory plan, program, policy or Contract that any Group Company maintains, sponsors or contributes to, or under or with respect to which any Group Company has any Liability, other than any plan sponsored or maintained by a Governmental Entity.
“Environmental Laws” means all Laws and Orders concerning pollution, protection of the environment, or human health or safety.
“Equity Securities” means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any Person (including any stock appreciation, phantom stock, profit participation or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.
“Equity Value” means $850,000,000.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“Exchange Act” means the Securities Exchange Act of 1934.
“Exchange Agent” has the meaning set forth in Section 2.5(a).
“Exchange Agent Agreement” has the meaning set forth in Section 2.5(a).
“Exchange Fund” has the meaning set forth in Section 2.5(c).
“Federal Securities Laws” means the Exchange Act, the Securities Act and the other U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise.
“Foreign Benefit Plan” means each Employee Benefit Plan maintained outside the United States of America by any of the Group Companies primarily for the benefit of its current or former employees, officers, directors or other individual service providers residing outside of the United States.
“Fraud” means an act or omission by a Party, and requires: (a) a false or incorrect representation or warranty expressly set forth in this Agreement, (b) with actual knowledge (as opposed to constructive, imputed or implied knowledge) by the Party making such representation or warranty that such representation or warranty expressly set forth in this Agreement is false or incorrect, (c) an intention to deceive another Party, to induce him, her or it to enter into this Agreement, (d) another Party, in justifiable or reasonable reliance upon such false or incorrect representation or warranty expressly set forth in this Agreement, causing such Party to enter into this Agreement, and (e) another Party to suffer damage by reason of such reliance. For the avoidance of doubt, “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud or alleged fraud) based on negligence or recklessness.
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“GAAP” means United States generally accepted accounting principles.
“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Governing Documents” of a U.S. corporation are its certificate or articles of incorporation and by-laws, the “Governing Documents” of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership, the “Governing Documents” of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation.
“Governmental Entity” means any United States or non-United States (a) federal, state, local, municipal or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal) or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, including any arbitral tribunal (public or private).
“Group Company” and “Group Companies” means, collectively, the Company and its Subsidiaries. The Parties acknowledge and agree that Sentar, RPC Tyche and their respective Affiliates shall not be deemed to be Group Companies as of the date hereof or at any other time prior to the Effective Time for purposes of this Agreement or any Ancillary Document.
“Hazardous Substance” means any material, substance or waste that is regulated by, or may give rise to standards of conduct or Liability pursuant to, any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroalkyl substances or radon.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.
“Illustrative Allocation Schedule” has the meaning set forth in Section 2.3(b).
“Incentive Equity Plan Proposal” has the meaning set forth in Section 5.8.
“Incentive Stock Option” means a Company Option intended to be an “incentive stock option” (as defined in Section 422 of the Code).
“Indebtedness” means, as of any time, without duplication, with respect to any Person, the outstanding principal amount of, accrued and unpaid interest on, fees and expenses arising under or in respect of (a) indebtedness for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, (c) obligations for the deferred purchase price of property or assets, including “earn-outs” and “seller notes” (but excluding any trade payables arising in the ordinary course of business), (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, in each case, solely to the extent drawn, (e) leases required to be capitalized under GAAP, (f) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements, and (g) any of the obligations of any other Person of the type referred to in clauses (a) through (f) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person.
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“Initial Required Closing Financial Statements” means, collectively, the PCAOB Audited Financial Statements, the Sentar Closing Financial Statements of the type described in clauses (a) through (c) thereof and the RPC Tyche Closing Financial Statements of the type described in clauses (a) through (c) thereof.
“Intellectual Property Rights” means all (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates, extensions of any of the foregoing (collectively, “Patents”); (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, social media accounts, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing (collectively, “Marks”); (c) copyrights, works of authorship, Data, design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing (collectively, “Copyrights”); (d) trade secrets, know-how, confidential or proprietary information, invention disclosures, inventions, idea, algorithms, formulae, processes, methods, techniques, and models, whether patentable or not; (e) Software or other technology, and all rights therein or thereto; and (f) any other intellectual or proprietary rights.
“Intended Tax Treatment” has the meaning set forth in the recitals to this Agreement.
“Investment Company Act” means the Investment Company Act of 1940.
“Investor Rights Agreement” has the meaning set forth in the recitals to this Agreement.
“IPO” has the meaning set forth in Section 8.18.
“JOBS Act” means the Jumpstart Our Business Startups Act of 2012.
“Latest Balance Sheet” mean the meaning set forth in Section 3.4(a).
“Law” means any federal, state, local, foreign, national or supranational statute, law (including common law), act, statute, ordinance, treaty, rule, code, regulation or other binding directive or guidance issued, promulgated or enforced by a Governmental Entity.
“Leased Real Property” has the meaning set forth in Section 3.18(b).
“Letter of Transmittal” means the letter of transmittal, substantially in the form attached as Exhibit D hereto and with such modifications, amendments or supplements as may be requested by the Exchange Agent and mutually agreed to by each of Tailwind and the Company (in either case, such agreement not to be unreasonably withheld, conditioned or delayed).
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“Liability” or “liability” means any and all debts, liabilities and obligations, whether accrued or fixed, absolute or contingent, known or unknown, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Proceeding or Order and those arising under any Contract, agreement, arrangement, commitment or undertaking.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien, license or sub-license, charge, or other similar encumbrance or interest (including, in the case of any Equity Securities, any voting, transfer or similar restrictions).
“Malicious Code” means any (a) “back door”, “drop dead device”, “time bomb”, “Trojan horse”, “virus”, “ransomware”, or “worm” (as such terms are commonly understood in the software industry), or (b) other code designed or intended to have, or capable of performing, any of the following functions: (i) disrupting, disabling, harming, interfering with or otherwise impeding in any manner the operation of, or providing unauthorized access to, a Company IT System on which such code is stored or installed; or (ii) damaging or destroying any Data or file without the user’s consent.
“Marks” has the meaning set forth in the definition of Intellectual Property Rights.
“Material Contracts” has the meaning set forth in Section 3.7(a).
“Material Permits” has the meaning set forth in Section 3.6.
“Merger” has the meaning set forth in Section 2.1(a).
“Merger Sub” has the meaning set forth in the introductory paragraph to this Agreement.
“Multiemployer Plan” has the meaning set forth in Section 3(37) or Section 4001(a)(3) of ERISA.
“NYSE” means the New York Stock Exchange.
“NYSE Proposal” has the meaning set forth in Section 5.8.
“Off-the-Shelf Software” means any Software that is made generally and widely available to the public on a commercial basis (including Public Software) and is licensed to any of the Group Companies on a non-exclusive basis under standard terms and conditions with a replacement cost of less than $100,000 in the aggregate.
“Officers” has the meaning set forth in Section 5.16(a).
“Order” means any outstanding writ, order, judgment, injunction, decision, determination, award, ruling, subpoena, verdict or decree entered, issued or rendered by any Governmental Entity.
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“Other Governing Document Proposals” has the meaning set forth in Section 5.8.
“Other PIPE Financing Amount” has the meaning set forth in the recitals to this Agreement.
“Other PIPE Investors” has the meaning set forth in the recitals to this Agreement.
“Other PIPE Subscription Agreements” has the meaning set forth in the recitals to this Agreement.
“Other Tailwind Stockholder Approval” means the approval of each Other Transaction Proposal by the affirmative vote of the holders of the requisite number of Tailwind Shares entitled to vote thereon, whether in person or by proxy at the Tailwind Stockholders Meeting (or any adjournment or postponement thereof), in accordance with the Governing Documents of Tailwind and applicable Law.
“Other Transaction Proposal” means each Transaction Proposal, other than the Required Transaction Proposals.
“Parties” has the meaning set forth in the introductory paragraph to this Agreement.
“Patents” has the meaning set forth in the definition of Intellectual Property Rights.
“PCAOB” means the Public Company Accounting Oversight Board.
“PCAOB Audited Financial Statements” means the audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 and related audited consolidated statements of operations, stockholders’ equity and cash flows of the Group Companies for each fiscal year then ended.
“Permits” means any approvals, authorizations, clearances, licenses, registrations, permits or certificates of a Governmental Entity.
“Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet delinquent or are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (c) encumbrances and restrictions on real property (including easements, covenants, conditions, rights of way and similar restrictions) that do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such real property, (d) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the use or occupancy of such real property or the operation of the businesses of the Group Company and do not prohibit or materially interfere with any of the Group Companies’ use or occupancy of such real property, (e) cash deposits or cash pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case in the ordinary course of business and which are not yet due and payable, (f) grants by any Group Company of non-exclusive rights in Intellectual Property Rights in the ordinary course of business consistent with past practice and (g) other Liens that do not materially and adversely affect the value, use or operation of the asset subject thereto.
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“Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity, whether or not a legal entity.
“Personal Data” means any Data or information that (a) alone or when combined with other information, identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with an identified or identifiable individual or natural person, consumer or household, or (b) is otherwise subject to applicable Laws or any privacy policies of the Company governing personal information.
“PIPE Financing” means the equity financing under all PIPE Subscription Agreements.
“PIPE Investors” means, collectively, the Cannae PIPE Investor and the Other PIPE Investors.
“PIPE Subscription Agreements” means, collectively, the Cannae PIPE Subscription Agreement and the Other PIPE Subscription Agreements.
“Pipeline Acquisitions” means, collectively, the transactions contemplated by each of the RPC Tyche Purchase Agreement and the Sentar Purchase Agreement.
“Pipeline Acquisitions Funds Flow” has the meaning set forth in Section 2.3(a).
“Pipeline Purchase Agreements” means, collectively, the RPC Tyche Purchase Agreement and the Sentar Purchase Agreement.
“Post-Closing Tailwind Bylaws” has the meaning set forth in Section 5.22.
“Post-Closing Tailwind Certificate of Incorporation” has the meaning set forth in Section 5.22.
“Pre-Closing Tailwind Governing Documents” means, collectively, (a) the Amended and Restated Certificate of Incorporation of Tailwind, dated as of September 1, 2020, and (b) the Amended & Restated Bylaws of Tailwind, adopted as of September 1, 2020.
“Pre-Closing Tailwind Stockholders” means the holders of Tailwind Shares as of any determination time prior to the Effective Time.
“Privacy and Security Requirements” means any of the following to the extent relating to the Processing of Personal Data or otherwise relating to consumer protection, consumer Contracts, or Data-related notifications: (a) all applicable Laws; (b) each Group Company’s own internal and external-facing privacy policies; (c) the Payment Card Industry Data Security Standard, if applicable, and any other industry standard to which any Group Company is bound; and (d) applicable provisions of Contracts to which any Group Company is a party or is otherwise bound.
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“Proceeding” means any lawsuit, litigation, action, audit, examination or investigation, claim, complaint, charge, proceeding, inquiry, suit or arbitration (in each case, whether civil, criminal or administrative and whether public or private) pending by or before or otherwise involving any Governmental Entity.
“Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure, performance of operations or set of operations on Data or on sets of Data, or other activity regarding Data (whether electronically or in any other form or medium).
“Prospectus” has the meaning set forth in Section 8.18.
“Public Software” means any Software that contains, includes, incorporates, or has instantiated therein, or is derived in any manner (in whole or in part) from, any Software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including under any terms or conditions that impose any requirement that any Software using, linked with, incorporating, distributed with or derived from such Public Software (a) be made available or distributed in source code form; (b) be licensed for purposes of making derivative works; or (c) be redistributable at no, or a nominal, charge.
“Public Stockholders” has the meaning set forth in Section 8.18.
“Real Property Leases” means all leases, sub-leases, licenses, concessions or other agreements, in each case, pursuant to which any Group Company leases or sub-leases any real property.
“Registered Intellectual Property” means all issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights, pending applications for registration of Copyrights and Internet domain name registrations.
“Registration Statement / Proxy Statement” means a registration statement on Form S-4 relating to the transactions contemplated by this Agreement and the Ancillary Documents and containing a prospectus and proxy statement of Tailwind.
“Representatives” means (a) with respect to any Party or other Person (in each case, other than the Company prior to the Closing), such Party’s or Person’s, as applicable, Affiliates and its and such Affiliates’ respective directors, officers, employees, members, owners, accountants, consultants, advisors, attorneys, agents and other representatives, and (b) with respect to the Company prior to the Closing, the Company’s Affiliates and the Company’s and its Affiliates’ respective equityholders, directors, officers, employees, members, owners, accountants, consultants, advisors, attorneys, agents and other representatives.
“Required Closing Financial Statements” means, collectively, the Company Closing Financial Statements, the Sentar Closing Financial Statements and the RPC Tyche Closing Financial Statements.
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“Required Governing Document Proposal” has the meaning set forth in Section 5.8.
“Required Tailwind Stockholder Approval” means the approval of each Required Transaction Proposal by the affirmative vote of the holders of the requisite number of Tailwind Shares entitled to vote thereon, whether in person or by proxy at the Tailwind Stockholders Meeting (or any adjournment or postponement thereof), in accordance with the Governing Documents of Tailwind and applicable Law.
“Required Transaction Proposals” means, collectively, the Business Combination Proposal, the NYSE Proposal, the Required Governing Document Proposal, and the Incentive Equity Plan Proposal.
“Rollover Option” has the meaning set forth in Section 2.4(a).
“RPC Tyche Closing Financial Statements” means (a) the audited consolidated balance sheet of RPC Tyche as of April 30, 2019, and related audited consolidated statements of operations, stockholders’ equity and cash flows of RPC Tyche for the fiscal year then ended, (b) the audited consolidated balance sheet of RPC Tyche as of April 30, 2020, and the related audited consolidated statements of operations, stockholders’ equity and cash flows of RPC Tyche for the fiscal year then ended, (c) the unaudited consolidated balance sheet of RPC Tyche as of October 30, 2019 and October 30, 2020, and the unaudited consolidated statements of operations, stockholders’ equity and cash flows of RPC Tyche for the six-month periods ended October 30, 2019 and October 30, 2020 and (d) any other financial statements or similar reports relating to RPC Tyche that are required to be included in the Registration Statement / Proxy Statement or any other filings or submissions to be made by the Group Companies or Tailwind with the SEC in connection with the transactions contemplated in this Agreement or any Ancillary Document.
“RPC Tyche Purchase Agreement” means, collectively, (a) the Asset Purchase Agreement, dated as of February 23, 2021, by and among RPC Tyche LLP, a limited liability partnership incorporated under the laws of England and Wales (“RPC Tyche”), QOMPLX Limited, a company incorporated under the laws of England and Wales, the Company and the other Persons party thereto, in the form attached hereto as Exhibit E, and (b) each agreement, document and instrument executed or to be executed in connection with the transactions contemplated by the agreement described in clause (a).
“Sanctions and Export Control Laws” means any Law or Order related to (a) import and export controls, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations and such other controls administered by the U.S. Customs and Border Protection, (b) economic sanctions, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, any European Union Member State, the United Nations, and Her Majesty’s Treasury of the United Kingdom or (c) anti-boycott measures.
“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.
“Schedules” means, collectively, the Company Disclosure Schedules and the Tailwind Disclosure Schedules.
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“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933.
“Securities Laws” means Federal Securities Laws and other applicable foreign and domestic securities or similar Laws.
“Security Incident” means an action that results in an actual or reasonably suspected, cyber or security incident that jeopardizes the confidentiality, integrity, or availability of, or that does or is reasonably likely to materially and adversely affect, a Company IT System, Personal Data or any Company trade secret. A Security Incident includes incidents of security breaches or intrusions, denial of service, or unauthorized entry, access, collection, use, processing, storage, sharing, distribution, transfer, disclosure, or destruction of, any Company IT Systems, Personal Data or Company trade secrets, or any loss, distribution, compromise or unauthorized disclosure of any of the foregoing.
“Sentar Closing Financial Statements” means (a) the audited consolidated balance sheet of Sentar as of September 30, 2019, and related audited consolidated statements of operations, stockholders’ equity and cash flows of Sentar for the fiscal year then ended, (b) the audited consolidated balance sheet of Sentar as of September 30, 2020, and the related audited consolidated statements of operations, stockholders’ equity and cash flows of Sentar for the fiscal year then ended, (c) the unaudited consolidated balance sheet of Sentar as of December 31, 2019 and December 31, 2020, and the unaudited consolidated statements of operations, stockholders’ equity and cash flows of Sentar for the three-month periods ended December 31, 2019 and December 31, 2020 and (d) any other financial statements or similar reports relating to Sentar that are required to be included in the Registration Statement / Proxy Statement or any other filings or submissions to be made by the Group Companies or Tailwind with the SEC in connection with the transactions contemplated in this Agreement or any Ancillary Document.
“Sentar Purchase Agreement” means, collectively, (a) the Agreement and Plan of Merger, dated as of February 22, 2021, by and among the Company, Sentar Acquisition, Inc., an Alabama corporation, Sentar, Inc., an Alabama corporation (“Sentar”), and Sunrise Rep Fund, LLC, acting solely in its capacity as representative for the equityholders of Sentar, in the form attached hereto as Exhibit F, and (b) each agreement, document and instrument executed or to be executed in connection with the transactions contemplated by the agreement described in clause (a).
“Signing Filing” has the meaning set forth in Section 5.4(b).
“Signing Press Release” has the meaning set forth in Section 5.4(b).
“Software” shall mean any and all (a) computer programs and software, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (b) Data and compilations, whether machine readable or otherwise; (c) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (d) all documentation, including user manuals and other training documentation, related to any of the foregoing.
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“Sponsor Letter Agreement” has the meaning set forth in the recitals to this Agreement.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.
“Supporting Company Stockholders” has the meaning set forth in the recitals to this Agreement.
“Surviving Company” has the meaning set forth in Section 2.1(a).
“Surviving Company Share” has the meaning set forth in Section 2.1(f).
“Tailwind” has the meaning set forth in the introductory paragraph to this Agreement.
“Tailwind Acquisition Proposal” means any direct or indirect acquisition (or other business combination), in one or a series of related transactions, by Tailwind (a) of or with an unaffiliated entity or (b) of all or a material portion of the assets, Equity Securities or businesses of an unaffiliated entity (in the case of each of clause (a) and (b), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, purchase of assets, tender offer or otherwise). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby shall constitute a Tailwind Acquisition Proposal.
“Tailwind Board” has the meaning set forth in the recitals to this Agreement.
“Tailwind Class A Shares” means shares of Class A common stock, par value $0.0001 per share, of Tailwind.
“Tailwind Class B Shares” means shares of Class B common stock, par value $0.0001 per share, of Tailwind.
“Tailwind D&O Persons” has the meaning set forth in Section 5.14(a).
“Tailwind Designee” has the meaning set forth in Section 5.16(e).
“Tailwind Disclosure Schedules” means the disclosure schedules to this Agreement delivered to the Company by Tailwind on the date of this Agreement.
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“Tailwind Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of, and that are due and payable (and not otherwise expressly allocated to a Group Company, the Company Stockholder Representative or any Company Equityholder pursuant to the terms of this Agreement or any Ancillary Document) by a Tailwind Party in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) the fees and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, consultants, or other agents or service providers of any Tailwind Party and (b) any other fees, expenses, commissions or other amounts that are expressly allocated to any Tailwind Party pursuant to this Agreement or any Ancillary Document. Notwithstanding the foregoing or anything to the contrary herein, Tailwind Expenses shall not include any Company Expenses.
“Tailwind Financial Statements” means all of the financial statements of Tailwind included in the Tailwind SEC Reports.
“Tailwind Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization and Qualification), Section 4.2 (Authority), Section 4.4 (Brokers) and Section 4.6 (Capitalization of the Tailwind Parties).
“Tailwind Incentive Equity Plan” has the meaning set forth in Section 5.18.
“Tailwind Material Adverse Effect” means any change, event, effect or occurrence that, individually or in the aggregate with any other change, event, effect or occurrence, has had or would reasonably be expected to have a material adverse effect on the ability of Tailwind to consummate the Merger in accordance with the terms of this Agreement.
“Tailwind Parties” means, collectively, Tailwind and Merger Sub.
“Tailwind Related Parties” has the meaning set forth in Section 4.9.
“Tailwind Related Party Transactions” has the meaning set forth in Section 4.9.
“Tailwind SEC Reports” has the meaning set forth in Section 4.7.
“Tailwind Shares” means (a) prior to the Effective Time, collectively, the Tailwind Class A Shares and the Tailwind Class B Shares and (b) from and after the filing of the Post-Closing Tailwind Certificate of Incorporation with the Secretary of State of Delaware pursuant to Section 5.22(a), shares of Class A common stock, par value $0.0001 per share, of Tailwind. Any reference to Tailwind Shares in this Agreement or any Ancillary Document shall be deemed to refer to clause (a) and/or clause (b) of this definition, as the context so requires.
“Tailwind Share Value” means $10.00.
“Tailwind Sponsor” has the meaning set forth in the recitals to this Agreement.
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“Tailwind Stockholder Approval” means, collectively, the Required Tailwind Stockholder Approval and the Other Tailwind Stockholder Approval.
“Tailwind Stockholder Redemption” means the right of the holders of Tailwind Class A Shares to redeem all or a portion of their Tailwind Class A Shares (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in Governing Documents of Tailwind.
“Tailwind Stockholders Meeting” has the meaning set forth in Section 5.8.
“Tailwind Warrant” means each warrant to purchase one Tailwind Class A Share at a price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement.
“Tax” means any federal, state, local or non-United States income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, ad valorem, real property, personal property (tangible and intangible), capital stock, social security, unemployment, payroll, wage, employment, severance, occupation, registration, environmental, communication, mortgage, profits, license, lease, service, goods and services, withholding, premium, unclaimed property, escheat, turnover, windfall profits or other taxes of any kind whatever, whether computed on a separate or combined, unitary or consolidated basis or in any other manner, together with any interest, deficiencies, penalties, additions to tax, or additional amounts imposed by any Governmental Entity with respect thereto, whether disputed or not, and including any secondary Liability for any of the aforementioned.
“Tax Authority” means any Governmental Entity responsible for the collection or administration of Taxes or Tax Returns.
“Tax Proceeding” means any Proceeding with or against any Taxing Authority or involving the determination or collection of any Tax.
“Tax Return” means returns, information returns, statements, declarations, claims for refund, schedules, attachments and reports relating to Taxes filed or required to be filed with any Governmental Entity, including any amendment of any of the foregoing.
“Termination Date” has the meaning set forth in Section 7.1(d).
“Third-Party Consents” has the meaning set forth in Section 5.2(a).
“Transaction Litigation” has the meaning set forth in Section 5.2(d).
“Transaction Proposals” has the meaning set forth in Section 5.8.
“Transaction Support Agreements” has the meaning set forth in the recitals to this Agreement.
“Transaction Support Agreement Deadline” has the meaning set forth in Section 5.13(a).
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“Treasury Regulations” means the regulations promulgated by the Internal Revenue Service and United States Department of Treasury under the Code.
“Trust Account” has the meaning set forth in Section 8.18.
“Trust Account Released Claims” has the meaning set forth in Section 8.18.
“Trust Agreement” has the meaning set forth in Section 4.8.
“Trustee” has the meaning set forth in Section 4.8.
“Unpaid Company Expenses” means the Company Expenses that are unpaid as of immediately prior to the Closing.
“Unpaid Tailwind Expenses” means the Tailwind Expenses that are unpaid as of immediately prior to the Closing.
“Unvested Company Option” means each Company Option outstanding as of immediately prior to the Effective Time that is not a Vested Company Option.
“Vested Company Option” means each Company Option outstanding as of immediately prior to the Effective Time that is vested as of such time or will vest in connection with the consummation of the transactions contemplated hereby (whether at the Effective Time or otherwise).
“Voting Company Preferred Shares” means, collectively, (a) Company Series A-1A Preferred Shares, (b) Company Series A-2 Preferred Shares, (c) Company Series A-3 Preferred Shares and (d) Company Series A-4 Preferred Shares.
“WARN” means the Worker Adjustment Retraining and Notification Act of 1988, as well as similar foreign, state or local Laws.
“Warrant Agreement” means the Warrant Agreement, dated as of September 9, 2020, by and between Tailwind and Continental Stock Transfer & Trust Company, a New York corporation.
“Willful Breach” means a material breach of this Agreement by a Party that is a consequence of an act undertaken or a failure to act by the breaching Party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement.
Article 2
MERGER
Section 2.1 The Merger(a).
(a) On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, on the Closing Date, Merger Sub shall merge with and into the Company (the “Merger”) at the Effective Time. Following the Effective Time, the separate existence of Merger Sub shall cease and the Company shall continue as the surviving company of the Merger (the “Surviving Company”).
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(b) At the Closing, the Parties shall cause a certificate of merger, in a form reasonably satisfactory to the Company and Tailwind (the “Certificate of Merger”), to be executed and filed with the Secretary of State of the State of Delaware. The Merger shall become effective on the date and time at which the Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware or at such later date and/or time as is agreed by Tailwind and the Company and specified in the Certificate of Merger (the time the Merger becomes effective being referred to herein as the “Effective Time”).
(c) The Merger shall have the effects set forth in Section 251 of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the assets, properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company and all debts, liabilities, obligations, restrictions, disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations and duties of the Surviving Company, in each case, in accordance with the DGCL.
(d) At the Effective Time, the Governing Documents of Merger Sub shall be the Governing Documents of the Surviving Company, in each case, until thereafter changed or amended as provided therein or by applicable Law.
(e) At the Effective Time, the directors and officers of the Company immediately prior to the Effective Time shall be the initial directors and officers of the Surviving Company, each to hold office in accordance with the Governing Documents of the Surviving Company until such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of their death, resignation or removal.
(f) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each share of capital stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be automatically cancelled and extinguished and converted into one share of common stock, par value $0.0001, of the Surviving Company (each such share, a “Surviving Company Share”).
(g) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share (other than any Dissenting Shares and the Company Shares cancelled and extinguished pursuant to Section 2.1(h)) issued and outstanding as of immediately prior to the Effective Time shall be automatically canceled and extinguished and converted into the right to receive the applicable portion of the Adjusted Transaction Share Consideration set forth on the Allocation Schedule. From and after the Effective Time, each Company Stockholder’s certificates (the “Certificates”), if any, evidencing ownership of the Company Shares and the Company Shares held in book-entry form issued and outstanding immediately prior to the Effective Time shall each cease to have any rights with respect to such Company Shares except as otherwise expressly provided for herein or under applicable Law.
(h) At the Effective Time, by virtue of the Merger and without any action on the part of any Party or any other Person, each Company Share held immediately prior to the Effective Time by the Company as treasury stock shall be automatically canceled and extinguished, and no consideration shall be paid with respect thereto.
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Section 2.2 Closing of the Transactions Contemplated by this Agreement. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place electronically by exchange of the closing deliverables by the means provided in Section 8.11 as promptly as reasonably practicable, but in no event later than the third (3rd) Business Day, following the satisfaction (or, to the extent permitted by applicable Law, waiver) of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) (the “Closing Date”) or at such other place, date and/or time as Tailwind and the Company may agree in writing.
Section 2.3 Pipeline Acquisition Funds Flow; Allocation Schedule.
(a) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Tailwind a funds flow schedule (the “Pipeline Acquisitions Funds Flow”) setting forth (i) the consideration (whether cash or otherwise) payable in connection with the closing of the transactions contemplated by each Pipeline Acquisition Agreement, including reasonably detailed calculations of the components and subcomponents thereof (including, for the avoidance of doubt, reasonably detailed calculations of each component and subcomponent of the definition of Aggregate Pipeline Acquisitions Cash Consideration), (ii) each cash payment or other amount to be paid by or on behalf of any Group Company in connection with the closing of the transactions contemplated by each Pipeline Acquisition Agreements, along with wire instructions for each such cash payment or other amount and (iii) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clause (a) and (b) are (A) true and correct in all respects and (B) in accordance with the applicable provisions of the Sentar Purchase Agreement and the RPC Tyche Purchase Agreement, as applicable, and this Agreement. The Company will review any comments to the Pipeline Acquisitions Funds Flow provided by Tailwind or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by Tailwind or any of its Representatives.
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(b) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Tailwind an allocation schedule (the “Allocation Schedule”) setting forth (i) the number of Company Shares held by each Company Stockholder (including, for the avoidance of doubt, the number of Company Shares to be issued in connection with each Pipeline Acquisition (including in connection with any “rollover” or other similar transaction) and each Person that will be a Company Stockholder as a result thereof), the number of Company Common Shares subject to each Company Option held by each holder thereof, as well as whether each such Company Option will be a Vested Company Option or an Unvested Company Option as of immediately prior to the Effective Time, (ii) in the case of the Company Options, the exercise (or similar) price and, if applicable, the exercise (or similar) date, (iii) the portion of the Adjusted Transaction Share Consideration allocated to each Company Option pursuant to Section 2.4(a) and the portion of the Adjusted Transaction Share Consideration allocated to each Company Share pursuant to Section 2.1(g) (including, for the avoidance of doubt, the portion of the Adjusted Transaction Share Consideration that would be allocated to any Company Shares pursuant to Section 2.1(g) but for such Company Shares being Dissenting Shares), as well as, in each case, reasonably detailed calculations with respect to the components and subcomponents thereof (including any exchange (or similar) ratio on which such calculations are based), (iv) each Company Stockholder that is a Dissenting Stockholder and the number of Company Shares held by such Company Stockholder that are Dissenting Shares, (v) the exercise price of each Rollover Option at the Effective Time, which shall be based on the same exchange (or similar) ratio used for purposes of determining the number of Rollover Options for which such Company Option is exchanged in clause (iii) of this Section 2.3(b), (vi) the number of Tailwind Shares to be issued to each Bridge Investor in respect of the Bridge Financing Interest Amount under the applicable Bridge Financing Agreement, as well as, in each case, reasonably detailed calculations of each component or subcomponent thereof (including with respect to the amount of the Bridge Financing Interest Amount under each Bridge Financing Agreement), and (vii) a certification, duly executed by an authorized officer of the Company, that the information and calculations delivered pursuant to clauses (i), (ii), (iii), (iv), (v) and (vi) are, and will be as of immediately prior to the Effective Time, (A) true and correct in all respects, (B) in accordance with the applicable provisions of this Agreement, (C) in the case of the Company Shares and the Company Options, in accordance with the Governing Documents of the Company, the Company Stockholders Agreements and applicable Laws, (D) in the case of the Company Options, in accordance with the Company Equity Plan and any applicable grant or similar agreement with respect to each Company Option and (E) in the case of the Tailwind Shares to be issued to each Bridge Investor in respect of the Bridge Financing Interest Amount under the applicable Bridge Financing Agreement, in accordance with the applicable Bridge Financing Agreement. Section 2.3(b) of the Company Disclosure Schedules contains an illustrative Allocation Schedule (the “Illustrative Allocation Schedule”) prepared by the Company as if the Closing occurred as of the date hereof and, without limiting any other covenants, agreements, representations or warranties of the Company under this Agreement or any Ancillary Agreement or any Company Equityholder under any Ancillary Document or the rights or remedies of a Tailwind Party or the Tailwind Sponsor with respect thereto, the Allocation Schedule will be substantially in the form of the Illustrative Allocation Schedule and will take into account any changes to the Company’s capitalization between the date hereof and the date of delivery of the Allocation Schedule to Tailwind pursuant to the first sentence of this Section 2.3(b). The Company will review any comments to the Allocation Schedule provided by Tailwind or any of its Representatives and consider in good faith and incorporate any reasonable comments proposed by Tailwind or any of its Representatives. Notwithstanding the foregoing or anything to the contrary herein, (x) the aggregate number of Tailwind Shares that each Company Equityholder will have a right to receive or to which his, her or its Company Options will become subject, as applicable, under this Agreement will be rounded down to the nearest whole share, (y) in no event shall the aggregate number of Tailwind Shares set forth on the Allocation Schedule that are allocated in respect of the Equity Securities of the Company (or, for the avoidance of doubt, the Company Equityholders) exceed (I) the Adjusted Transaction Share Consideration, minus (II) the Tailwind Shares that would be allocated to Company Shares pursuant to Section 2.1(g) but for such Company Shares being Dissenting Shares (it being further understood and agreed, for the avoidance of doubt, that in no event shall any Tailwind Shares described in this clause (II) be allocated to any other Company Equityholder and shall instead not be allocated at the Closing or otherwise, except solely in the circumstances described in Section 2.6), and (z) the Tailwind Parties and the Exchange Agent will be entitled to rely upon the Allocation Schedule for purposes of allocating the transaction consideration to the Company Equityholders under this Agreement or under the Exchange Agent Agreement, as applicable
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Section 2.4 Treatment of Company Options.
(a) At the Effective Time, by virtue of the Merger and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 2.4(c)), each Company Option (whether a Vested Company Option or an Unvested Company Option) shall automatically cease to represent the right to purchase Company Common Shares and shall be canceled and extinguished in exchange for an option to purchase Tailwind Shares under the Tailwind Incentive Equity Plan (each, a “Rollover Option”) in an amount and at an exercise price set forth on the Allocation Schedule. Each Rollover Option shall be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Company Option immediately prior to the Effective Time, except for (i) terms (A) rendered inoperative by reason of the transactions contemplated by this Agreement (including any anti-dilution or other similar provisions that adjust the number of underlying shares that are subject to any such option) or (B) to the extent they conflict with the Tailwind Incentive Equity Plan and (ii) such other immaterial administrative or ministerial changes as the Tailwind Board (or the compensation committee of the Tailwind Board) may determine in good faith are appropriate to effectuate the administration of the Rollover Options. Such conversion shall occur in a manner intended to comply with (x) the requirements of Section 409A of the Code and (y) in the case of any Rollover Option that is an Incentive Stock Option, the requirements of Section 424 of the Code.
(b) At the Effective Time, all Company Equity Plans shall terminate without any further obligations or Liabilities to the Company or any of its Affiliates (including, for the avoidance of doubt, the other Group Companies and Tailwind) and all Company Equity Awards (whether vested or unvested) shall no longer be outstanding and shall automatically be canceled, extinguished and retired and shall cease to exist, and each holder thereof shall cease to have any rights with respect thereto or under the Company Equity Plans or any underlying grant, award, or similar agreement, except as otherwise expressly provided for in Section 2.4(a).
(c) Prior to the Closing, the Company shall take, or cause to be taken, all necessary or appropriate actions under the Company Equity Plans, under the underlying grant, award or similar agreement and otherwise to give effect to the provisions of this Section 2.4.
Section 2.5 Company Stockholder Deliverables.
(a) At least three (3) Business Days prior to the Closing Date, Tailwind shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) (it being understood and agreed, for the avoidance of doubt, that Continental Stock Transfer & Trust Company (or any of its Affiliates) shall be deemed to be acceptable to the Company) and enter into an exchange agent agreement with the Exchange Agent (the “Exchange Agent Agreement”) for the purpose of exchanging Certificates, if any, representing the Company Shares and each Company Share held in book-entry form on the stock transfer books of the Company immediately prior to the Effective Time, in either case, for the portion of the Adjusted Transaction Share Consideration issuable in respect of such Company Shares pursuant to Section 2.1(g) and on the terms and subject to the other conditions set forth in this Agreement. The Company and the Company Stockholder Representative shall each reasonably cooperate with Tailwind and the Exchange Agent in connection with the appointment of the Exchange Agent, the entry into the Exchange Agent Agreement (including, if necessary or advisable, as determined in good faith by Tailwind, by also entering into the Exchange Agent Agreement in the form agreed to by Tailwind and the Exchange Agent) and the covenants and agreements in this Section 2.5 (including the provision of any information, or the entry into any agreements or documentation, necessary or advisable, as determined in good faith by Tailwind, or otherwise required by the Exchange Agent Agreement for the Exchange Agent to fulfill its duties as the Exchange Agent in connection with the transactions contemplated hereby).
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(b) At least three (3) Business Days prior to the Closing Date, the Company shall mail or otherwise deliver, or shall cause to be mailed or otherwise delivered, to each of the Company Stockholders a Letter of Transmittal (which, for the avoidance of doubt, shall include an acknowledgement and agreement by each Company Stockholder to agree to be bound by the covenants, agreements and obligations set forth in Section 5.23).
(c) At the Effective Time, Tailwind shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Company Stockholders and for exchange in accordance with this Section 2.5 through the Exchange Agent, evidence of Tailwind Shares in book-entry form representing the portion of the Adjusted Transaction Share Consideration issuable pursuant to Section 2.1(g) in exchange for the Company Shares outstanding immediately prior to the Effective Time. All shares in book-entry form representing the portion of the Adjusted Transaction Share Consideration issuable pursuant to Section 2.1(g) deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”.
(d) Each Company Stockholder whose Company Shares have been converted into the right to receive a portion of the Adjusted Transaction Share Consideration pursuant to Section 2.1(g) shall be entitled to receive the portion of the Adjusted Transaction Share Consideration to which he, she or it is entitled on the date provided in Section 2.5(e) upon (i) surrender of a Certificate (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent or (ii) delivery of an “agent’s message” in the case of Company Shares held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal), to the Exchange Agent.
(e) If a properly completed and duly executed Letter of Transmittal, together with any Certificates (or affidavit of loss in lieu thereof in the form required by the Letter of Transmittal) or an “agent’s message”, as applicable, and any other documents or agreements required by the Letter of Transmittal, is delivered to the Exchange Agent in accordance with Section 2.5(d) (i) at least two (2) Business Days prior to the Closing Date, then Tailwind and the Company shall take all necessary actions to cause the applicable portion of the Adjusted Transaction Share Consideration to be issued to the applicable Company Stockholder in book-entry form on the Closing Date, or (ii) less than two (2) Business Days prior to the Closing Date, then Tailwind and the Company shall take all necessary actions to cause the applicable portion of the Adjusted Transaction Share Consideration to be issued to the Company Stockholder in book-entry form within two (2) Business Days after such delivery.
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(f) If any portion of the Adjusted Transaction Share Consideration is to be issued to a Person other than the Company Stockholder in whose name the surrendered Certificate or the transferred Company Share in book-entry form is registered, it shall be a condition to the issuance of the applicable portion of the Adjusted Transaction Share Consideration that, in addition to any other requirements set forth in the Letter of Transmittal or the Exchange Agent Agreement, (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Company Share in book-entry form shall be properly transferred and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer or similar Taxes required as a result of such consideration being issued to a Person other than the registered holder of such Certificate or Company Share in book-entry form or establish to the satisfaction of the Exchange Agent that such transfer or similar Taxes have been paid or are not payable.
(g) No interest will be paid or accrued on the Adjusted Transaction Share Consideration (or any portion thereof). From and after the Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.5, each Company Share (other than, for the avoidance of doubt, any Dissenting Shares and the Company Shares cancelled and extinguished pursuant to Section 2.1(h)) shall solely represent the right to receive a portion of the Adjusted Transaction Share Consideration to which such Company Share is entitled to receive pursuant to Section 2.1(g).
(h) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Shares that were outstanding immediately prior to the Effective Time.
(i) Any portion of the Exchange Fund that remains unclaimed by the Company Stockholders twelve (12) months following the Closing Date shall be delivered to Tailwind or as otherwise instructed by Tailwind, and any Company Stockholder who has not exchanged his, her or its Company Shares for the applicable portion of the Adjusted Transaction Share Consideration in accordance with this Section 2.5 prior to that time shall thereafter look only to Tailwind for the issuance of the applicable portion of the Adjusted Transaction Share Consideration, without any interest thereon. None of Tailwind, the Surviving Company or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any portion of the Adjusted Transaction Share Consideration remaining unclaimed by the Company Stockholders immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of Tailwind free and clear of any claims or interest of any Person previously entitled thereto.
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Section 2.6 Dissenting Stockholder. Notwithstanding anything to the contrary herein, any Company Share for which any Company Stockholder (such Company Stockholder, a “Dissenting Stockholder”) (a) has not voted in favor of the Merger or consented to it in writing and (b) has demanded the appraisal of such Company Shares in accordance with, and has complied in all respects with, Section 262 of the DGCL (collectively, the “Dissenting Shares”) shall not be converted into the right to receive the applicable portion of Adjusted Transaction Share Consideration pursuant to Section 2.1(g). From and after the Effective Time, (i) the Dissenting Shares shall be cancelled and extinguished and shall cease to exist and (ii) the Dissenting Stockholders shall be entitled only to such rights as may be granted to them under Section 262 of the DGCL and shall not be entitled to exercise any of the voting rights or other rights of a stockholder of the Surviving Corporation or any of its Affiliates (including Tailwind); provided, however, that if any Dissenting Stockholder effectively withdraws or loses such appraisal rights (through failure to perfect such appraisal rights or otherwise), then the Company Shares held by such Dissenting Stockholder (A) shall no longer be deemed to be Dissenting Shares and (B) shall be treated as if they had been converted automatically at the Effective Time into the right to receive the applicable portion of Adjusted Transaction Share Consideration pursuant to Section 2.1(g) upon delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any other documents or agreements required by the Letter of Transmittal) and the surrender of the applicable documents and other deliverables set forth in Section 2.5(d). Each Dissenting Stockholder who becomes entitled to payment for his, her or its Dissenting Shares pursuant to the DGCL shall receive payment thereof from the Company in accordance with the DGCL. The Company shall give Tailwind prompt notice of any written demands for appraisal of any Company Share, attempted withdrawals of such demands and any other documents or instruments served pursuant to the DGCL and received by the Company relating to stockholders’ rights of appraisal in accordance with the provisions of Section 262 of the DGCL, and Tailwind shall have the opportunity to participate in all negotiations and proceedings with respect to all such demands. The Company shall not, except with the prior written consent, not to be unreasonably withheld, conditioned or delayed, of Tailwind (prior to the Closing) or the Tailwind Sponsor (after the Closing), make any payment or deliver any consideration (including Tailwind Shares) with respect to, settle or offer or agree to settle any such demands.
Section 2.7 Withholding. Tailwind, the Group Companies and the Exchange Agent shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any consideration payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Tax Law. To the extent that amounts are so withheld and remitted to the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. The Parties shall cooperate in good faith to eliminate or reduce any such deduction or withholding (including through the request and provision of any statements, forms or other documents to reduce or eliminate any such deduction or withholding).
Article 3
REPRESENTATIONS AND WARRANTIES RELATING
TO THE GROUP COMPANIES
Subject to Section 8.8, except as set forth in the Company Disclosure Schedules, the Company hereby represents and warrants to the Tailwind Parties as follows:
Section 3.1 Organization and Qualification.
(a) Each Group Company is a corporation, limited liability company or other applicable business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable). Section 3.1(a) of the Company Disclosure Schedules sets forth the jurisdiction of formation or organization (as applicable) for each Group Company. Each Group Company has the requisite corporate, limited liability company or other applicable business entity power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted, except where the failure to have such power or authority would not have a Company Material Adverse Effect.
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(b) True and complete copies of the Governing Documents of the Company and the Company Stockholders Agreements have been made available to Tailwind, in each case, as amended and in effect as of the date of this Agreement. The Governing Documents of the Company and the Company Stockholders Agreements are in full force and effect, and the Company is not in breach or violation of any provision set forth in its Governing Documents or the Company Stockholders Agreements.
(c) Each Group Company is duly qualified or licensed to transact business and is in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in each jurisdiction in which the property and assets owned, leased or operated by it, or the nature of the business conducted by it, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing would not have a Company Material Adverse Effect.
Section 3.2 Capitalization of the Group Companies.
(a) Except for any changes to the extent permitted by Section 5.1(b) or resulting from the issuance, grant, transfer or disposition of Equity Securities of the Company in accordance with Section 5.1(b), Section 3.2a) of the Company Disclosure Schedules sets forth a true and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of the Company issued and outstanding, (ii) the identity of the Persons that are the record and beneficial owners thereof, (iii) with respect to each Company Option, (A) the date of grant, (B) any applicable exercise (or similar) price, (C) any applicable expiration (or similar) date, and (D) any applicable vesting schedule (including acceleration provisions) and (iv) with respect to each Company Option, whether such Company Option is an Incentive Stock Option. All of the Equity Securities of the Company have been duly authorized and validly issued and are fully paid and non-assessable, and each Company Option outstanding immediately prior to the Effective Time will be an “in the money” Company Option for purposes of Section 2.5 (i.e., the value of the Adjusted Transaction Share Consideration allocated to each Company Option (determined by reference to, for the avoidance of doubt, the Tailwind Share Value) is in excess of the exercise (or similar) price applicable to such Company Option). The Equity Securities of the Company (1) were not issued in violation of the Governing Documents of the Company, the Company Stockholders Agreements or any other Contract to which the Company is party or bound, (2) were not issued in violation of any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, (3) have been offered, sold and issued in compliance with applicable Law, including Securities Laws and (4) are free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Company Stockholders Agreements). Except for the Company Options set forth on Section 3.2(a) of the Company Disclosure Schedules and those either permitted by Section 5.1(b) or issued, granted or entered into in accordance with Section 5.1(b), the Company has no outstanding (x) equity appreciation, phantom equity or profit participation rights or (y) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Company. Except for the Company Stockholders Agreements, there are no voting trusts, proxies or other Contracts to which any Group Company is a party with respect to the voting or transfer of the Company’s Equity Securities.
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(b) Section 3.2(b) of the Company Disclosure Schedules sets forth a true and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of each Subsidiary of the Company issued and outstanding and (ii) the identity of the Persons that are the record and beneficial owners thereof. There are no outstanding (A) equity appreciation, phantom equity or profit participation rights or (B) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require any Subsidiary of the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Subsidiaries of the Company. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of any Subsidiary of the Company.
(c) None of the Group Companies owns or holds (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Security, and none of the Group Companies are a partner or member of any partnership, limited liability company or joint venture.
(d) Section 3.2(d) of the Company Disclosure Schedules sets forth a list of all Change of Control Payments of the Group Companies.
(e) Section 3.2(e) of the Company Disclosure Schedules sets forth a list of all Indebtedness of the Group Companies as of the date of this Agreement, including the outstanding principal balance as of the date of this Agreement, and the debtor and the creditor thereof.
Section 3.3 Authority. The Company has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Subject to the receipt of the Company Stockholder Written Consent, the execution and delivery of this Agreement, the Ancillary Documents to which the Company is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate (or other similar) action on the part of the Company. This Agreement and each Ancillary Document to which the Company is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by the Company and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company (assuming that this Agreement and the Ancillary Documents to which the Company is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
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Section 3.4 Financial Statements; Undisclosed Liabilities.
(a) The Company has made available to Tailwind a true and complete copy of (i) the audited consolidated balance sheet of the Group Companies as of December 31, 2019 and related audited consolidated statements of operations, stockholders’ equity and cash flows of the Group Companies for the fiscal year then ended (the “2019 Audited Financial Statements”) and (ii) the unaudited consolidated balance sheet of the Group Companies as of December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations, stockholders’ equity and cash flows of the Group Companies for the fiscal year then ended (the “2020 Unaudited Financial Statements”, and together with the 2019 Audited Financial Statements, collectively, the “Company Signing Financial Statements”), which are attached as Section 3.4(a) of the Company Disclosure Schedules. The Company Signing Financial Statements (including the notes thereto) (A) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of the 2019 Audited Financial Statements, as may be specifically indicated in the notes thereto and subject, in the case of the 2020 Unaudited Financial Statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations, stockholders’ equity and cash flows of the Group Companies as at the date thereof and for the period indicated therein (subject, in the case of the 2020 Unaudited Financial Statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material)) and (C) with respect to the 2019 Audited Financial Statements only, (x) were audited in accordance with the standards of the AICPA and contain an unqualified report of the Company’s auditors and (y) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the date of this Agreement (including Regulation S-X or Regulation S-K, as applicable).
(b) (i) The PCAOB Audited Financial Statements and (ii) each of the other financial statements or similar reports relating to the Group Companies required to be included in the Registration Statement / Proxy Statement or any other filings or submissions to be made by the Group Companies or Tailwind with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document (such other financial statements and other reports, together with the PCAOB Audited Financial Statements, collectively, the “Company Closing Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17(a), (A) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) will fairly present, in all material respects, the financial position, results of operations, stockholders’ equity and cash flows of the Group Companies as at the date thereof and for the period indicated therein (subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material)), (C) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors and (D) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).
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(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (none of which are Liabilities for breach of Contract, breach of warranty, tort, infringement, misappropriation or violation of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Company Signing Financial Statements and the Company Closing Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Since January 1, 2018, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Section 3.5 Consents and Requisite Governmental Approvals; No Violations.
(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company with respect to the Company’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) the filing of the Certificate of Merger or (iv) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Company Material Adverse Effect.
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(b) Except as set forth in Schedule 3.5(b), none of the execution or delivery by the Company of this Agreement or any Ancillary Documents to which it is or will be a party, the performance by the Company of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Company’s Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (A) any Contract to which any Group Company is a party or (B) any Material Permits, (iii) violate, or constitute a breach under, any Order or applicable Law to which any Group Company or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any Group Company, except, in the case of any of clauses (ii) through (iv) above, as would not have a Company Material Adverse Effect.
Section 3.6 Permits. Each of the Group Companies has all Permits (the “Material Permits”) that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted, except as would not have a Company Material Adverse Effect. Except as would not have a Company Material Adverse Effect, (i) each Material Permit is in full force and effect in accordance with its terms and (ii) no written notice of revocation, cancellation or termination of any Material Permit has been received by any Group Company.
Section 3.7 Material Contracts.
(a) Section 3.7(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which a Group Company is, as of the date of this Agreement, a party (each Contract required to be set forth on Section 3.7(a) of the Company Disclosure Schedules, together with each Contract entered into after the date of this Agreement that would be required to be set forth on Section 3.7(a) of the Company Disclosure Schedules if entered into prior to the execution and delivery of this Agreement, collectively, the “Material Contracts”):
(i) any Contract relating to Indebtedness of any Group Company or to the placing of a Lien (other than a Permitted Lien) on any material assets or properties of any Group Company;
(ii) any Contract under which any Group Company is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $1,000,000;
(iii) any Contract under which any Group Company is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by such Group Company, except for any lease or agreement under which the aggregate annual rental payments do not exceed $1,000,000;
(iv) any material joint venture, profit-sharing, partnership or other similar Contract;
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(v) any Contract that (A) limits or purports to limit, in any material respect, the freedom of any Group Company to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of Tailwind or any of its Affiliates after the Closing, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions or (C) contains any other provisions restricting or purporting to restrict the ability of any Group Company to sell or develop, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect or that would so limit or purports to limit, in any material respect, Tailwind or any of its Affiliates after the Closing;
(vi) any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures) by any Group Company in an amount in excess of (A) $1,000,000 annually or (B) $2,000,000 over the life of the agreement;
(vii) any Contract requiring any Group Company to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of a Group Company, in each case in excess of $1,000,000;
(viii) any Contract under which any Group Company has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person;
(ix) any Contract required to be disclosed on Section 3.19 of the Company Disclosure Schedules;
(x) any Contract with any Person (A) pursuant to which any Group Company (or Tailwind or any of its Affiliates after the Closing) may be required to pay royalties or similar payments or (B) under which any Group Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Company Product or any Intellectual Property Rights;
(xi) any Contract (A) governing the terms of the employment, engagement or services of any current director, manager, officer, employee, or individual independent contractor or other service provider of a Group Company whose annual base salary (or, in the case of an independent contractor, annual base compensation) is in excess of $250,000, or (B) providing for any Change of Control Payment of the type described in clause (a) of the definition thereof;
(xii) any Contract for the disposition of any portion of the assets or business of any Group Company or for the acquisition by any Group Company of the assets or business of any other Person (other than acquisitions or dispositions made in the ordinary course of business), or under which any Group Company has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation (including, for the avoidance of doubt, each Pipeline Purchase Agreement);
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(xiii) any settlement, conciliation or similar Contract (A) requiring payments in excess of $1,000,000 after the date of this Agreement, (B) with a Governmental Entity or (C) that imposes or is reasonably likely to impose, at any time in the future, any material, non-monetary obligations on any Group Company (or Tailwind or any of its Affiliates after the Closing);
(xiv) any other Contract (other than Contracts governing the terms of employment) the performance of which requires either (A) annual payments to or from any Group Company in excess of $1,000,000 or (B) aggregate payments to or from any Group Company in excess of $2,000,000 over the life of the agreement and, in each case, that is not terminable by the applicable Group Company without penalty upon less than thirty (30) days’ prior written notice; and
(xv) any (A) license, royalty, indemnification, covenant not to sue, escrow, co-existence, concurrent use, consent to use or other Contract relating to any Intellectual Property Rights (including any Contracts relating to the licensing of Intellectual Property Rights by any Group Company to a Third Party or by a Third Party to any Group Company) and (B) other Contracts affecting any Group Company’s ability to own, enforce, use, license or disclose any Intellectual Property Rights or providing for the development or acquisition of any Intellectual Property Rights (including any Data), in the case of clauses (A) and (B) other than (I) Off-the-Shelf-Software licenses, (II) Contracts requiring annual or one-time license, maintenance, support and other payments by or to a Group Company of less than $250,000 in the aggregate, and (III) customer Contracts based on a Group Company’s standard form of Contract (a copy of which form has been provided to Tailwind) without material modification of such form.
(b) (i) Each Material Contract is valid and binding on the applicable Group Company and, to the Company’s knowledge, the counterparties thereto, and is in full force and effect and enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, the counterparties thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity), and (ii) the applicable Group Company and, to the Company’s knowledge, the counterparties thereto are not in material breach of, or default under, any Material Contract. The Company has made available to Tailwind true and complete copies of (A) all Material Contracts in effect as of the date hereof, and (B) the substantially final form of each Pipeline Purchase Agreement to be entered into after the date hereof (other than any customary closing certificates or instruments to be delivered in connection with the closing thereof, which will, for the avoidance of doubt, be in a form provided by Section 5.21).
Section 3.8 Absence of Changes. During the period beginning on January 1, 2021 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred and (b) except as expressly contemplated by this Agreement, any Ancillary Document or in connection with the transactions contemplated hereby and thereby, (i) the Group Companies have conducted their businesses in the ordinary course in all material respects, (ii) no Group Company has taken any action that would require the consent of Tailwind if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b)(iv)(A), Section 5.1(b)(vii), Section 5.1(b)(viii), Section 5.1(b)(ix), Section 5.1b)xii) or Section 5.1(b)(xvii) (to the extent related to any of the foregoing) and (iii) no Group Company has taken any action that would require the consent of Tailwind if taken during the period from the date of this Agreement until the Closing pursuant to Section 5.1(b)(i), Section 5.1(b)(xv) or Section 5.1(b)(xvii) (to the extent related to any of the foregoing).
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Section 3.9 Litigation. Except as set forth on Section 3.9 of the Company Disclosure Schedules, there is (and since January 1, 2018 there has been) no Proceeding pending or, to the Company’s knowledge, threatened against or involving any Group Company that, if adversely decided or resolved, has been or would reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. Neither the Group Companies nor any of their respective properties or assets is subject to any material Order. Since January 1, 2018, there have been no material Proceedings by a Group Company pending against any other Person.
Section 3.10 Compliance with Applicable Law. Each Group Company (a) conducts (and since January 1, 2018 has conducted) its business in accordance with all Laws and Orders applicable to such Group Company and is not in violation of any such Law or Order and (b) has not received any written communications or, to the Company’s knowledge, any other communications from a Governmental Entity that alleges that such Group Company is not in compliance with any Law or Order, except in each case of clauses (a) and (b), as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
Section 3.11 Employee Plans.
(a) Section 3.11(a) of the Company Disclosure Schedules sets forth a true and complete list of all material Employee Benefit Plans (including, for each such Employee Benefit Plan that is a Foreign Benefit Plan, its primary non-U.S. jurisdiction). With respect to each material Employee Benefit Plan, the Group Companies have provided Tailwind with true and complete copies of the material documents pursuant to which the plan is maintained, funded and administered.
(b) Except as set forth on Section 3.11(b) of the Company Disclosure Schedules, no Group Company has any Liability with respect to or under: (i) a Multiemployer Plan; (ii) a “defined benefit plan” (as defined in Section 3(35) of ERISA) that is or was subject to Title IV of ERISA or Section 412 of the Code; (iii) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA; or (iv) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. Except as set forth on Section 3.11(b) of the Company Disclosure Schedules, no Group Company has any material Liabilities to provide any retiree or post-termination or post-ownership health or life insurance or other welfare-type benefits to any Person other than health continuation coverage pursuant to COBRA or similar Law for which the covered Person pays the full premium cost of coverage. No Group Company has any material Liabilities by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.
(c) Except as set forth on Section 3.11(c) of the Company Disclosure Schedules, (i) each Employee Benefit Plan has been established, maintained, funded, operated and administered, in all material respects, in compliance with its terms and all applicable Laws; (ii) each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has timely received a favorable determination or opinion or advisory letter from the Internal Revenue Service; and (iii) none of the Group Companies has incurred (whether or not assessed) any material penalty or Tax under Section 4980H, 4980B, 4980D, 6721 or 6722 of the Code.
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(d) Except as set forth on Section 3.11(d) of the Company Disclosure Schedules, each Employee Benefit Plan that constitutes a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code has been operated and administered in all material respects in operational compliance with, and is in all material respects in documentary compliance with, Section 409A of the Code and its purpose.
(e) Except as set forth on Section 3.11(e) of the Company Disclosure Schedules, there are no pending or, to the Company’s knowledge, threatened, material claims or Proceedings with respect to any Employee Benefit Plan (other than routine claims for benefits). None of the Group Companies have engaged in, and to the Company’s knowledge, no trustee, administrator or other third-party fiduciary and/or party-in-interest thereof has engaged in, any non-exempt “prohibited transactions” within the meaning of Section 4975(c)(1)(A)-(D) of the Code or Sections 406 or 407 of ERISA and no breaches of fiduciary duty (as determined under ERISA) with respect to any Employee Benefit Plan have occurred that have resulted in or could reasonably be expected to result in the imposition on any Group Company of material Liability pursuant to Section 502 of ERISA, Section 409 of ERISA, or Section 4975 of the Code. With respect to each Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that any Group Company is required to have made under applicable Law or under any Employee Benefit Plan prior to the date hereof have been timely made, except as would not have a Company Material Adverse Effect.
(f) Except as set forth on Section 3.11(f) of the Company Disclosure Schedules, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not (alone or in combination with any other event) (i) result in any material payment or benefit becoming due to or result in forgiveness of any indebtedness for borrowed money of any current or former director, officer, employee, individual independent contractor or other individual service providers of any of the Group Companies, (ii) materially increase the amount or value of any compensation or benefits payable to any current or former director, officer, employee, individual independent contractor or other individual service providers of any of the Group Companies or (iii) result in the acceleration of the time of payment or vesting, or trigger any material payment or funding of any compensation or benefits to any current or former director, officer, employee, individual independent contractor or other individual service providers of any of the Group Companies.
(g) Except as set forth on Section 3.11(g) of the Company Disclosure Schedules, no amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” of any of the Group Companies under any Employee Benefit Plan or otherwise as a result of the consummation of the transactions contemplated by this Agreement could, separately or in the aggregate, be nondeductible under Section 280G of the Code or subjected to an excise tax under Section 4999 of the Code.
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(h) Except as set forth on Section 3.11(h) of the Company Disclosure Schedules, the Group Companies have no obligation to make a “gross-up” or similar payment under any Employee Benefit Plan in respect of any taxes that become payable under Section 4999 or 409A of the Code.
(i) Each Foreign Benefit Plan that is required to be registered or intended to be tax exempt has been registered (and, where applicable, accepted for registration) and is tax exempt and has been maintained in good standing, to the extent applicable, with each Governmental Entity. Except as set forth on Section 3.11(i) of the Company Disclosure Schedules, no Foreign Benefit Plan is a “defined benefit plan” (as defined in ERISA, whether or not subject to ERISA) or has any material unfunded or underfunded Liabilities. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, all contributions required to have been made by or on behalf of the Group Companies with respect to plans or arrangements maintained or sponsored by a Governmental Entity (including severance, termination indemnities or other similar benefits maintained for employees outside of the U.S.) have been timely made or properly accrued.
Section 3.12 Environmental Matters. Except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole:
(a) None of the Group Companies have received any written communication or, to the Company’s knowledge, other communication from any Governmental Entity or any other Person regarding any actual, alleged, or potential violation of, or Liability under, any Environmental Laws.
(b) There is (and since January 1, 2018 there has been) no Proceeding pending or, to the Company’s knowledge, threatened against or involving any Group Company in respect to any Environmental Laws.
(c) There has been no manufacture, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any Hazardous Substances.
The Group Companies have made available to Tailwind copies of all environmental assessments, audits and reports and all other material environmental, health and safety documents that are in any Group Company’s possession or control relating to the current or former operations, properties or facilities of the Group Companies.
Section 3.13 Intellectual Property.
(a) Section 3.13(a) of the Company Disclosure Schedules sets forth a true and complete list of (i) all currently issued or pending Company Registered Intellectual Property and (ii) material unregistered Intellectual Property Rights owned by any Group Company. Section 3.13(a) of the Company Disclosure Schedules lists, for each item of Company Registered Intellectual Property, (A) the owner(s) of such item, (B) the jurisdictions in which such item has been issued or registered or filed, (C) the issuance, registration or application date, as applicable, for such item and (D) the issuance, registration or application number, as applicable, for such item.
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(b) All necessary fees and filings with respect to any material Company Registered Intellectual Property have been timely submitted to the relevant intellectual property office or Governmental Entity and Internet domain name registrars to maintain such Company Registered Intellectual Property in full force and effect. No issuance or registration obtained and no application filed by the Group Companies for any material Intellectual Property Rights has been cancelled, abandoned, allowed to lapse or not renewed. There are no material Proceedings pending, including litigations, interference, re-examination, inter parties review, reissue, opposition, nullity, or cancellation proceedings pending that relate to any of the material Company Registered Intellectual Property and, to the Company’s knowledge, no such material Proceedings are threatened by any Governmental Entity or any other Person.
(c) A Group Company exclusively owns all right, title and interest in and to all Company Owned Intellectual Property, free and clear of all Liens or obligations to others (other than Permitted Liens). For all material Patents owned by the Group Companies, each inventor on the Patent has assigned their rights to a Group Company. No Group Company has (i) transferred ownership of, or granted any exclusive license with respect to, any material Company Owned Intellectual Property to any other Person or (ii) granted any customer the right to use any material Company Product or service on anything other than a non-exclusive basis. The applicable Group Company has valid rights under all Contracts for Company Licensed Intellectual Property to use, sell, license and otherwise exploit, as the case may be, all Company Licensed Intellectual Property licensed pursuant to such Contracts as the same is currently used, sold, licensed and otherwise exploited by such Group Company, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole. The Company Owned Intellectual Property and the Company Licensed Intellectual Property, to the Company’s knowledge, constitute all of the Intellectual Property Rights used or held for use by the Group Companies in the operation of their respective businesses, and all Intellectual Property Rights necessary and sufficient to enable the Group Companies to conduct their respective businesses as currently conducted in all material respects. The Company Owned Intellectual Property and the Company Licensed Intellectual Property is subsisting and, to the Company’s knowledge, is valid and enforceable, and, to the Company’s knowledge, all of the Group Companies’ rights in and to the Company Registered Intellectual Property, the Company Owned Intellectual Property and the Company Licensed Intellectual Property, are valid and enforceable (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(d) Each Group Company’s employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any material Intellectual Property Rights for on behalf of any Group Company (each such person, a “Creator”) have agreed to maintain and protect the trade secrets and confidential information of such Group Company. Each Group Company’s employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any such Intellectual Property have assigned or have agreed to a present assignment to such Group Company all Intellectual Property Rights authored, invented, created, improved, modified or developed by such person in the course of such Creator’s employment or other engagement with such Group Company.
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(e) Each Group Company has taken reasonable steps to safeguard and maintain the secrecy of any trade secrets, know-how and other confidential information owned or Processed by any Group Company. Without limiting the foregoing, each Group Company has not disclosed any material trade secrets, know-how or confidential information to any other Person unless such disclosure was under an appropriate written non-disclosure agreement containing appropriate limitations on use, reproduction and disclosure. To the Company’s knowledge, there has been no violation or unauthorized access to or unauthorized disclosure of any material trade secrets, know-how or confidential information of or in the possession of or Processed by any Group Company, or of any written obligations with respect to such.
(f) To the Company’s knowledge, neither the conduct of the business of the Group Companies nor any of the Company Products nor the design, development, use, offer for sale, sale or other exploitation of any Company Product infringes, constitutes or results from an unauthorized use or misappropriation of or otherwise violates any Intellectual Property Rights of any other Person, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(g) Since January 1, 2018, there is no Proceeding pending nor has any Group Company received any written communications or, to the Company’s knowledge, any other communications (i) alleging that a Group Company has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, (ii) challenging the validity, enforceability, use or exclusive ownership of any Company Owned Intellectual Property or (iii) inviting any Group Company to take a license under any Patent or consider the applicability of any Patents to any products or services of the Group Companies or to the conduct of the business of the Group Companies, in each case in clauses (i) to (iii), except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(h) To the Company’s knowledge, no Person is infringing, misappropriating, misusing, diluting or violating any Company Owned Intellectual Property in any material respect. Since January 1, 2018, no Group Company has made any written claim against any Person alleging any infringement, misappropriation or other violation of any Company Owned Intellectual Property in any material respect.
(i) To the Company’s knowledge, each Group Company has obtained, possesses and is in compliance with valid licenses to use all of third-party Software present on the computers and other Software-enabled electronic devices that it owns or leases or that is otherwise used by such Group Company and/or its employees in connection with the Group Company business, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as whole. No Group Company has disclosed or delivered to any escrow agent or any other Person, other than employees or Software development contractors who are subject to confidentiality obligations, any of the source code that is Company Owned Intellectual Property, and no other Person has any right to, contingent or otherwise, including obtaining access to or using, any such source code. To the Company’s knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time or both) will, or would reasonably be expected to, result in the delivery, license or disclosure of any source code that is owned by a Group Company or otherwise constitutes Company Owned Intellectual Property to any Person who is not, as of the date the event occurs or circumstance or condition comes into existence, a current employee or Software development contractor of a Group Company subject to confidentiality obligations with respect thereto.
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(j) No Software that is licensed under a Public Software license has been used, licensed or distributed by or on behalf of any of the Group Companies in a manner that (i) requires any Company Owned Intellectual Property to be licensed, sold, disclosed, distributed, hosted or otherwise made available, including in source code form and/or for the purpose of making derivative works, for any reason, (ii) grants, or requires any Group Company to grant, the right to decompile, disassemble, reverse engineer or otherwise derive the source code or underlying structure of any Company Owned Intellectual Property, (iii) limits in any manner the ability to charge license fees or otherwise seek compensation in connection with marketing, licensing or distribution of any Company Owned Intellectual Property or (iv) otherwise imposes any material limitation, restriction or condition on the right or ability of any Group Company to use, hold for use, license, host, distribute or otherwise dispose of any Company Owned Intellectual Property, other than compliance with notice and attribution requirements. The Group Companies are and have been in material compliance with all applicable licenses for all Public Software that is used in, incorporated into, combined with, linked with, distributed with, provided to any Person as a service in connection with, provided via a network as a service or application in connection with, or made available with, any Company Product.
Section 3.14 Labor Matters.
(a) Since January 1, 2018, none of the Group Companies (A) has or has had any material Liability for any arrears of wages or other compensation for services (including salaries, wage premiums, commissions, fees or bonuses), and (B) has or has had any material Liability for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security, social insurances or other benefits or obligations for any employees of any Group Company (other than routine payments to be made in the normal course of business and consistent with past practice).
(b) No Group Company is a party to or bound by any CBA and no employees of any Company Group are represented by any labor union, labor organization, works council, or similar collective-bargaining representative with respect to their employment. There is no duty on the part of any Group Company to bargain with any labor union, labor organization, works council, or similar collective-bargaining representative in connection with the execution and delivery of this Agreement , the Ancillary Documents or the consummation of the transactions contemplated hereby or thereby. Since January 1, 2018, there has been no actual or, to the Company’s knowledge, threatened unfair labor practice charges, material labor grievances, material labor arbitrations, strikes, lockouts, work stoppages, slowdowns or other material labor disputes against or involving any Group Company. To the Company’s knowledge, since January 1, 2018, there have been no labor organizing activities with respect to any employees of any Group Company.
(c) Except for as set forth on Section 3.14(c) of the Company Disclosure Schedules, no facility closure or shutdown (whether voluntary or by Order), material reduction- in-force, furlough, or temporary layoff, material reduction in salary or wages, or other material workforce changes affecting employees of the Group Companies has occurred since January 1, 2020 or is currently contemplated, planned or announced, including as a result of COVID-19 or any Law, Order, directive, guideline or recommendation by any Governmental Entity in connection with or in response to COVID-19.
(d) To the Company’s knowledge, each Group Company has investigated all sexual harassment, or other discrimination, retaliation or policy violation allegations against any employee with the title of “director” or above that it has received since January 1, 2018, and the Group Companies do not reasonably expect any material Liability with respect to any such allegations.
Section 3.15 Insurance. Section 3.15 of the Company Disclosure Schedules sets forth a list of all material policies of fire, liability, workers’ compensation, property, casualty and other forms of insurance owned or held by any Group Company as of the date of this Agreement. All such policies are in full force and effect, all premiums due and payable thereon as of the date of this Agreement have been paid in full as of the date of this Agreement, and true and complete copies of all such policies have been made available to Tailwind. As of the date of this Agreement, no claim by any Group Company is pending under any such policies as to which coverage has been denied or disputed, or rights reserved to do so, by the underwriters thereof, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
Section 3.16 Tax Matters.
(a) Each Group Company has prepared and filed all material Tax Returns required to have been filed by it, all such Tax Returns are true and complete in all material respects and prepared in compliance in all material respects with all applicable Laws and Orders, and each Group Company has paid all material Taxes required to have been paid by it regardless of whether shown on a Tax Return.
(b) Each Group Company has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party.
(c) No Group Company is currently the subject of a Tax audit or examination or has been informed in writing of the commencement or anticipated commencement of any Tax audit or examination that has not been resolved or completed in each case with respect to material Taxes.
(d) No Group Company has consented in writing to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business.
(e) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to a Group Company which agreement or ruling would be effective after the Closing Date.
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(f) No Group Company is or has been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).
(g) There are no Liens for material Taxes on any assets of the Group Companies other than Permitted Liens.
(h) During the two (2)-year period ending on the date of this Agreement, no Group Company was a distributing corporation or a controlled corporation in a transaction purported or intended to be governed in whole or in part by Section 355 of the Code (or so much of Section 356 as relates to Section 355).
(i) No Group Company (i) has been a member of an affiliated group filing a consolidated federal income Tax Return or any affiliated, combined, consolidated, aggregate, unitary or other group under applicable Law (other than a group the common parent of which was a Group Company or any of its current Affiliates) or (ii) has any material Liability for the Taxes of any Person (other than a Group Company or any of its current Affiliates) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-United States Law), as a transferee or successor or by Contract (other than any Contract entered into in the ordinary course of business and the principal purpose of which does not relate to Taxes).
(j) No written claims have ever been made by any Tax Authority in a jurisdiction where a Group Company does not file Tax Returns that such Group Company is or may be subject to taxation by that jurisdiction, which claims have not been resolved or withdrawn.
(k) No Group Company is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreements (other than one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes) and no Group Company is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes, in each case except for Contracts and partnerships entirely among Group Companies.
(l) Each Group Company is Tax resident only in its jurisdiction of formation.
(m) No Group Company has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.
(n) Section 3.16(b) of the Company Disclosure Schedules sets forth a list of the entity classification of each Group Company for U.S. federal and applicable state and local income Tax purposes, and, unless otherwise noted on Schedule 3.16(n), each entity has had such classifications at all times since its incorporation or formation, as applicable.
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Section 3.17 Brokers. Except for fees (including a good faith estimate of the amounts due and payable assuming the Closing occurs) set forth on Section 3.17 of the Company Disclosure Schedules (which fees shall be the sole responsibility of the Company), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or any of its Affiliates for which any of the Group Companies has any obligation.
Section 3.18 Real and Personal Property.
(a) No Group Company owns any real property.
(b) Section 3.18(b) of the Company Disclosure Schedules sets forth a true and complete list (including street addresses) of all real property leased by any of the Group Companies (the “Leased Real Property”) and all Real Property Leases pursuant to which any Group Company is a tenant or landlord as of the date of this Agreement. True and complete copies of all such Real Property Leases (including all material amendments, extensions, renewals and guaranties with respect thereto) have been made available to Tailwind. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the applicable Group Company party thereto, enforceable in accordance with its terms against such Group Company and, to the Company’s knowledge, each other party thereto (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity). There is no material breach or default by any Group Company or, to the Company’s knowledge, any counterparty under any Real Property Lease, and, to the Company’s knowledge, no event has occurred which (with or without notice or lapse of time or both) would constitute a material breach or default under any Real Property Lease or would permit termination of, or a material modification or acceleration thereof, by any counterparty to any Real Property Lease. The Group Companies’ possession and quiet enjoyment of the Leased Real Property under any Real Property Lease has not been materially disturbed, and to the Company’s knowledge, there are no material disputes with respect to any Real Property Lease.
(c) Each Group Company has good, marketable and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material assets and properties of the Group Companies reflected in the Company Signing Financial Statements or thereafter acquired by the Group Companies, except for assets disposed of in the ordinary course of business.
Section 3.19 Transactions with Affiliates. Section 3.19 of the Company Disclosure Schedules sets forth all Contracts between (a) any Group Company, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder or Affiliate of any Group Company (other than, for the avoidance of doubt, any other Group Company) or any family member of the foregoing Persons, on the other hand (each Person identified in this clause (b), a “Company Related Party”), other than (i) Contracts with respect to a Company Related Party’s employment with (including benefit plans and other ordinary course compensation from) any of the Group Companies entered into in the ordinary course of business and (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b). No Company Related Party (A) owns any interest in any material asset or property used in any Group Company’s business, (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a supplier, vendor, partner, customer, lessor or other material business relation of any Group Company, (C) is a supplier, vendor, partner, customer, lessor, or other material business relation of any Group Company or (D) owes any material amount to, or is owed any material amount by, any Group Company (other than accrued compensation, employee benefits, employee or director expense reimbursement, in each case, in the ordinary course of business or pursuant to any transaction entered into after the date of this Agreement that is either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b)). All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 3.19 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 3.19) are referred to herein as “Company Related Party Transactions”.
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Section 3.20 Data Privacy and Security.
(a) Each Group Company has implemented adequate written policies relating to the Processing of Personal Data as and to the extent required by applicable Privacy and Security Requirements.
(b) There is (and since January 1, 2018 there has been) no material Proceeding pending or, to the Company’s knowledge, threatened against any Group Company initiated by any Person (including (i) the United States Federal Trade Commission, any state attorney general or similar state official, (ii) any other Governmental Entity, foreign or domestic or (iii) any regulatory or self-regulatory entity) alleging that any Processing of Personal Data by or on behalf of a Group Company is or was in violation of any Privacy and Security Requirements, nor, to the Company’s knowledge, is there (nor since January 1, 2018 has there been) a reasonable basis for the foregoing.
(c) To Company’s knowledge, since January 1, 2018, (i) there has been no material Security Incidents with respect to any Company IT Systems, Personal Data, or Company Products, (ii) there has been no unauthorized access to, or use, disclosure, or Processing of Personal Data or any trade secrets, know-how or material confidential information of or in the possession or control of any Group Company or any of its contractors with regard to any Personal Data obtained from or on behalf of a Group Company, and (iii) none of the Group Companies has notified or been required to notify any Person of any (A) loss, theft or damage of, or (B) other unauthorized or unlawful access to, or use, disclosure or other Processing of, Personal Data, except, in each case, as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole.
(d) Each Group Company owns or has license to use the Company IT Systems as necessary to operate the business of each Group Company as currently conducted. The Group Companies have taken reasonable precautions to protect the confidentiality, integrity and security of the Company IT Systems and all information stored or contained therein or transmitted thereby from any loss, theft, or unauthorized disclosure, use, access, interruption or modification by any Person. To Company’s knowledge, all Company IT Systems are (i) free from any Malicious Code, material defect, bug or programming, design or documentation error and (ii) in sufficiently good working condition to effectively perform all material information technology operations necessary for the operation of the Business (except for ordinary wear and tear). Since January 1, 2018, there have not been any material failures, breakdowns or continued substandard performance of any Company IT Systems that have caused a material failure or disruption of the Company IT Systems. The Group Companies have implemented, maintained and tested adequate and commercially reasonable disaster recovery procedures and facilities for the Business and all Data material to the respective businesses of the Group Companies has been regularly backed-up in an encrypted manner and tested for restoration.
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(e) The Group Companies (i) engage and have engaged in, directly or indirectly, Data Processing only with respect to such Data as they are authorized to so engage (or to cause such Processing, as applicable) by Law and, as applicable, Contract, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, and (ii) have implemented reasonable safeguards designed to prevent unauthorized use or disclosure of such Data. The Group Companies have, with respect to all such Data that is subjected to any Processing directly or indirectly by the Group Companies in the course of operating the Business, all rights necessary to conduct the operation of the Business as then-currently conducted, in all material respects.
Section 3.21 Compliance with International Trade & Anti-Corruption Laws.
(a) None of the Group Companies, any of their respective officers, directors or employees or, to the Company’s knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing, is or has been, since January 1, 2018, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws; (iii) an entity owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv) otherwise engaging in dealings with or for the benefit of any Person described in clauses (i) through (iii) or any country or territory which is or has, since January 1, 2018, been the subject of or target of any Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Venezuela, Sudan and Syria).
(b) None of the Group Companies, any of their respective officers, directors or employees or, to the Company’s knowledge, any of their other Representatives, or any other Persons acting for or on behalf of any of the foregoing has, since January 1, 2018, directly or indirectly, (i) made, offered, authorized, facilitated, solicited, promised, paid or received any unlawful contribution, gift, entertainment, bribes, kickbacks, financial or other advantage, or anything else of value, regardless of form or amount, to or from any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate, (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws or (iv) been the subject of any Proceeding or disclosure regarding any violation or alleged violation under Sanctions and Export Control Laws or Anti-Corruption Laws, and no such Proceeding is pending or, to the Company’s knowledge, has been threatened.
Section 3.22 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Group Companies expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing Tailwind Stockholders or at the time of the Tailwind Stockholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
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Section 3.23 Investigation; No Other Representations.
(a) The Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the Tailwind Parties and (ii) it has been furnished with or given access to such documents and information about the Tailwind Parties and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.
(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, the Company has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of any Tailwind Party or any other Person, either express or implied, and the Company, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party, none of the Tailwind Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
Section 3.24 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY TAILWIND PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS Article 3, Section 8.19(e) OR THE ANCILLARY DOCUMENTS, NEITHER The Company NOR ANY OTHER PERSON MAKES, and the company EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF the TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE GROUP COMPANIES THAT HAVE BEEN MADE AVAILABLE TO ANY Tailwind PARTY OR ANY OF THEIR REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE GROUP COMPANIES BY THE MANAGEMENT OR ON BEHALF OF THE COMPANY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY ANY Tailwind PARTY IN EXECUTING, DELIVERING or PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. Except for the representations and warranties expressly set forth in THIS article 3, Section 8.19(e) OR the ancillary DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY GROUP COMPANY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF THE COMPANY OR ANY OTHER PERSON, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY ANY Tailwind PARTY IN EXECUTING, DELIVERING or PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS or THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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Article 4
REPRESENTATIONS AND WARRANTIES RELATING TO THE TAILWIND
PARTIES
(a) Subject to Section 8.8, except as set forth on the Tailwind Disclosure Schedules, or (b) except as set forth in any Tailwind SEC Reports (excluding any disclosures in any “risk factors” section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimers and other disclosures that are generally cautionary, predictive or forward-looking in nature), each Tailwind Party, jointly and severally, hereby represents and warrants to the Company as follows:
Section 4.1 Organization and Qualification. Each Tailwind Party is a corporation, limited liability company or other applicable business entity duly organized, incorporated or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of organization, incorporation or formation (as applicable).
Section 4.2 Authority. Each Tailwind Party has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. Subject to the receipt of the Tailwind Stockholder Approval and the approvals and consents to be obtained by Merger Sub pursuant to Section 5.9, the execution and delivery of this Agreement, the Ancillary Documents to which a Tailwind Party is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate, limited liability company or other similar action on the part of such Tailwind Party. This Agreement has been and each Ancillary Document to which a Tailwind Party is or will be a party will be, upon execution thereof, duly and validly executed and delivered by such Tailwind Party and constitutes or will constitute, upon execution thereof, as applicable, a valid, legal and binding agreement of such Tailwind Party (assuming this Agreement has been and the Ancillary Documents to which such Tailwind Party is or will be a party are or will be, upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto), enforceable against such Tailwind Party in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
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Section 4.3 Consents and Requisite Governmental Approvals; No Violations.
(a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of a Tailwind Party with respect to such Tailwind Party’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which it is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement / Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) such filings with and approvals of NYSE to permit the Tailwind Shares to be issued in connection with the transactions contemplated by this Agreement and the Ancillary Documents to be listed on NYSE, (iv) the filing of the Certificate of Merger, (v) the filing of the Post-Closing Tailwind Certificate of Incorporation pursuant to Section 5.22(a), (vi) the approvals and consents to be obtained by Merger Sub pursuant to Section 5.9, (vii) the Tailwind Stockholder Approval or (viii) any other consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not have a Tailwind Material Adverse Effect.
(b) None of the execution or delivery by a Tailwind Party of this Agreement or any Ancillary Document to which it is or will be a party, the performance by a Tailwind Party of its obligations hereunder or thereunder or the consummation by a Tailwind Party of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in a violation or breach of any provision of the Governing Documents of a Tailwind Party, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which a Tailwind Party is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which any such Tailwind Party or any of its properties or assets are subject or bound or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) of a Tailwind Party, except in the case of any of clauses (ii) through (iv) above, as would not have a Tailwind Material Adverse Effect.
Section 4.4 Brokers. Except for fees (including a good faith estimate of the amounts due and payable assuming the Closing occurs) set forth on Section 4.4 of the Tailwind Disclosure Schedules (which fees shall be the sole responsibility of the Tailwind, except as otherwise provided in Section 8.6), no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Tailwind Party for which a Tailwind Party has any obligation.
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Section 4.5 Information Supplied. None of the information supplied or to be supplied by or on behalf of either Tailwind Party expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement / Proxy Statement will, when the Registration Statement / Proxy Statement is declared effective or when the Registration Statement / Proxy Statement is mailed to the Pre-Closing Tailwind Stockholders or at the time of the Tailwind Stockholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Section 4.6 Capitalization of the Tailwind Parties.
(a) Section 4.6(a) of the Tailwind Disclosure Schedules sets forth a true and complete statement of the number and class or series (as applicable) of the issued and outstanding Tailwind Shares. All outstanding Equity Securities of Tailwind (except to the extent such concepts are not applicable under the applicable Law of Tailwind’s jurisdiction of organization, incorporation or formation, as applicable, or other applicable Law) have been duly authorized and validly issued and all of the issued and outstanding Tailwind Shares are fully paid and non-assessable. Such Equity Securities (i) were not issued in violation of the Governing Documents of Tailwind and (ii) are not subject to any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person (other than transfer restrictions under applicable Securities Laws or under the Governing Documents of Tailwind) and were not issued in violation of any preemptive rights, call option, right of first refusal, subscription rights, transfer restrictions or similar rights of any Person. Except for the Tailwind Shares set forth on Section 4.6(a) of the Tailwind Disclosure Schedules (assuming that no Tailwind Stockholder Redemptions are effected) and the Tailwind Warrants, immediately prior to Closing and before giving effect to the PIPE Financing, there shall be no other Equity Securities of Tailwind issued and outstanding.
(b) Immediately after the Effective Time, (i) the authorized capital stock of Tailwind will consist of 500,000,000 Tailwind Shares and 1,000,000 shares of preferred stock, par value $0.0001 per share, and (ii) all of the issued and outstanding Tailwind Shares (A) will be duly authorized, validly issued, fully paid and nonassessable, (B) will have been issued in compliance in all material respects with applicable Law and (C) will not have been issued in breach or violation of any preemptive rights or Contract to which Tailwind is a party or bound.
(c) Except (i) for the Tailwind Warrants or (ii) as expressly contemplated by this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby or as otherwise either permitted pursuant to Section 5.10 or issued, granted or entered into, as applicable, in accordance with Section 5.10, there are no outstanding (A) equity appreciation, phantom equity or profit participation rights or (B) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require Tailwind to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of Tailwind.
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(d) The Equity Securities of Merger Sub outstanding as of the date of this Agreement (i) have been duly authorized and validly issued and are fully paid and nonassessable, (ii) were issued in compliance in all material respects with applicable Law, and (iii) were not issued in breach or violation of any preemptive rights or Contract to which Merger Sub is a party or bound. All of the outstanding Equity Securities of Merger Sub are owned directly by Tailwind free and clear of all Liens (other than transfer restrictions under applicable Securities Law). As of the date of this Agreement, Tailwind has no Subsidiaries other than Merger Sub and does not own, directly or indirectly, any Equity Securities in any Person other than Merger Sub.
Section 4.7 SEC Filings. Tailwind has timely filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “Tailwind SEC Reports”), and, as of the Closing, will have filed or furnished all other statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to Federal Securities Laws through the Closing (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, but excluding the Registration Statement / Proxy Statement, the “Additional Tailwind SEC Reports”). Each of the Tailwind SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied and each of the Additional Tailwind SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the applicable requirements of the Federal Securities Laws (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the Tailwind SEC Reports or the Additional Tailwind SEC Reports (for purposes of the Additional Tailwind SEC Reports, assuming that the representation and warranty set forth in Section 3.22 is true and correct in all respects with respect to all information supplied by or on behalf of Group Companies expressly for inclusion or incorporation by reference therein). As of their respective dates of filing, the Tailwind SEC Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Tailwind SEC Reports.
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Section 4.8 Trust Account. As of the date of this Agreement, Tailwind has an amount in cash in the Trust Account equal to at least $334,000,000. The funds held in the Trust Account are (a) invested in United States “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act, having a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act which invest only in direct U.S. government treasury obligations and (b) held in trust pursuant to that certain Investment Management Trust Agreement, dated September 9, 2020 (the “Trust Agreement”), between Tailwind and Continental Stock Transfer & Trust Company, as trustee (the “Trustee”). There are no separate agreements, side letters or other agreements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Tailwind SEC Reports to be inaccurate in any material respect or, to Tailwind’s knowledge, that would entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of deferred underwriting commissions or Taxes, (ii) the Pre-Closing Tailwind Stockholders who shall have elected to redeem their Tailwind Class A Shares pursuant to the Governing Documents of Tailwind or (iii) if Tailwind fails to complete a business combination within the allotted time period set forth in the Governing Documents of Tailwind and liquidates the Trust Account, subject to the terms of the Trust Agreement, Tailwind (in limited amounts to permit Tailwind to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of Tailwind) and then the Pre-Closing Tailwind Stockholders). Prior to the Closing, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of Tailwind and the Trust Agreement. As of the date of this Agreement, Tailwind has performed all material obligations required to be performed by it, and is not in material default, under the Trust Agreement, and, to Tailwind’s knowledge, no event has occurred which (with due notice or lapse of time or both) would constitute a material default under the Trust Agreement. As of the date of this Agreement, there are no Proceedings pending with respect to the Trust Account. Since September 9, 2020, Tailwind has not released any money from the Trust Account (other than interest income earned on the funds held in the Trust Account as permitted by the Trust Agreement). Upon the consummation of the transactions contemplated hereby (including the distribution of assets from the Trust Account (A) in respect of deferred underwriting commissions or Taxes or (B) to the Pre-Closing Tailwind Stockholders who have elected to redeem their Tailwind Class A Shares pursuant to the Governing Documents of Tailwind, each in accordance with the terms of and as set forth in the Trust Agreement), Tailwind shall have no further obligation under either the Trust Agreement or the Governing Documents of Tailwind to liquidate or distribute any assets held in the Trust Account, and the Trust Agreement shall terminate in accordance with its terms.
Section 4.9 Transactions with Affiliates. Section 4.9 of the Tailwind Disclosure Schedules sets forth all Contracts between (a) Tailwind, on the one hand, and (b) any officer, director, employee, partner, member, manager, direct or indirect equityholder or Affiliate of Tailwind or the Tailwind Sponsor, on the other hand (each Person identified in this clause (b), an “Tailwind Related Party”), other than (i) Contracts with respect to a Tailwind Related Party’s employment with, or the provision of services to, Tailwind entered into in the ordinary course of business (including benefit plans, indemnification arrangements and other ordinary course compensation) and (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.10 or entered into in accordance with Section 5.10. No Tailwind Related Party (A) owns any interest in any material asset or property used in the business of Tailwind, (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material client, supplier, vendor, partner, customer, lessor or other material business relation of Tailwind or (C) owes any material amount to, or is owed any material amount by, Tailwind (other than accrued compensation, employee benefits, employee or director expense reimbursement, in each case, in the ordinary course of business or pursuant to a transaction entered into after the date of this Agreement that is either permitted pursuant to Section 5.10 or entered into in accordance with Section 5.10). All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.9 (including, for the avoidance of doubt, pursuant to the second sentence of this Section 4.9) are referred to herein as “Tailwind Related Party Transactions”.
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Section 4.10 Litigation. As of the date of this Agreement, there is (and since its organization, incorporation or formation, as applicable, there has been) no Proceeding pending or, to Tailwind’s knowledge, threatened against or involving any Tailwind Party that, if adversely decided or resolved, would be material to the Tailwind Parties, taken as a whole. As of the date of this Agreement, none of the Tailwind Parties nor any of their respective properties or assets is subject to any material Order. As of the date of this Agreement, there are no material Proceedings by any Tailwind Party pending against any other Person.
Section 4.11 Compliance with Applicable Law. Each Tailwind Party is (and since its organization, incorporation or formation, as applicable, has been) in compliance with all applicable Laws, except as would not have a Tailwind Material Adverse Effect.
Section 4.12 Merger Sub Activities. Merger Sub was organized solely for the purpose of entering into this Agreement, the Ancillary Documents, the performance of its covenants and agreements in this Agreement and the Ancillary Documents and consummating the transactions contemplated hereby and thereby and has not engaged in any activities or business, other than those incident or related to, or incurred in connection with, its organization, incorporation or formation, as applicable, its continuing corporate (or similar) existence or the negotiation, preparation or execution of this Agreement or any Ancillary Document, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby.
Section 4.13 Internal Controls; Listing; Financial Statements.
(a) Except as is not required in reliance on exemptions from various reporting requirements by virtue of Tailwind’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the JOBS Act, or “smaller reporting company” within the meaning of the Exchange Act, since its initial public offering, (i) Tailwind has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of Tailwind’s financial reporting and the preparation of Tailwind’s financial statements for external purposes in accordance with GAAP and (ii) Tailwind has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that material information relating to Tailwind is made known to Tailwind’s principal executive officer and principal financial officer by others within Tailwind.
(b) Tailwind has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(c) Since its initial public offering, Tailwind has complied in all material respects with all applicable listing and corporate governance rules and regulations of NYSE. The classes of securities representing issued and outstanding Tailwind Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NYSE. As of the date of this Agreement, there is no material Proceeding pending or, to Tailwind’s knowledge, threatened against Tailwind by NYSE or the SEC with respect to any intention by such entity to deregister Tailwind Class A Shares or prohibit or terminate the listing of Tailwind Class A Shares on NYSE. Tailwind has not taken any action that is designed to terminate the registration of Tailwind Class A Shares under the Exchange Act.
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(d) The Tailwind SEC Reports contain true and complete copies of the applicable Tailwind Financial Statements. The Tailwind Financial Statements (i) fairly present in all material respects the financial position of Tailwind as at the respective dates thereof, and the results of its operations, stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods indicated (except, in the case of any audited financial statements, as may be indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of notes thereto), (iii) in the case of the audited Tailwind Financial Statements, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(e) Tailwind has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for Tailwind’s and its Subsidiaries’ assets. Tailwind maintains and, for all periods covered by the Tailwind Financial Statements, has maintained books and records of Tailwind in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of Tailwind in all material respects.
(f) Since its incorporation, Tailwind has not received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of Tailwind, (ii) a “material weakness” in the internal controls over financial reporting of Tailwind or (iii) fraud, whether or not material, that involves management or other employees of Tailwind who have a significant role in the internal controls over financial reporting of Tailwind.
Section 4.14 No Undisclosed Liabilities. Except for the Liabilities (a) set forth in Section 4.14 of the Tailwind Disclosure Schedules, (b) incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Document, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, the Tailwind Expenses and any Liabilities arising out of, or related to, any Proceeding related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, including any stockholder demand or other stockholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), (c) in the case of Merger Sub, incurred in connection with or incident or related to its organization, incorporation or formation, as applicable, or continuing corporate (or similar) existence, (d) set forth or disclosed in the Tailwind Financial Statements, (e) that have arisen since the date of the most recent balance sheet included in the Tailwind SEC Reports in the ordinary course of business, (f) that are either permitted pursuant to Section 5.10 or incurred in accordance with Section 5.10, or (g) that are not, and would not reasonably be expected to be, individually or in the aggregate, material to the Tailwind Parties, taken as a whole, the Tailwind Parties do not have any Liabilities.
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Section 4.15 Tax Matters.
(a) Tailwind has prepared and filed all material Tax Returns required to have been filed by it, all such Tax Returns are true and complete in all material respects and prepared in compliance in all material respects with all applicable Laws and Orders, and Tailwind has paid all material Taxes required to have been paid or deposited by it regardless of whether shown on a Tax Return.
(b) Tailwind has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party.
(c) Tailwind is not currently the subject of a Tax audit or examination and has not been informed in writing of the commencement or anticipated commencement of any Tax audit or examination that has not been resolved or completed, in each case with respect to material Taxes.
(d) Tailwind has not consented in writing to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business, in each case with respect to material Taxes.
(e) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or issued by any Tax Authority with respect to any Tailwind Party which agreement or ruling would be effective after the Closing Date.
(f) None of the Tailwind Parties is and none of the Tailwind Parties has been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).
(g) Each Tailwind Party is Tax resident only in its jurisdiction of organization, incorporation or formation, as applicable.
(h) No Tailwind Party (i) has been a member of an affiliated group filing a consolidated federal income Tax Return or any affiliated, combined, consolidated, aggregate, unitary or other group under state, local or non-United States Law (other than a group the common parent of which was a Tailwind Party) or (ii) has any material Liability for the Taxes of any Person (other than a Tailwind Party) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-United States Law), as a transferee or successor or by Contract (other than any Contract entered into in the ordinary course of business and the principal purpose of which does not relate to Taxes).
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(i) No Tailwind Party has a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.
(j) No written claims have ever been made by any Tax Authority in a jurisdiction where a Tailwind Party does not file Tax Returns that such Tailwind Party is or may be subject to taxation by that jurisdiction, which claims have not been resolved or withdrawn.
(k) No Tailwind Party is or has been a “foreign person” as defined at 31 C.F.R. § 800.224.
Section 4.16 Compliance with International Trade & Anti-Corruption Laws
(a) Since Tailwind’s incorporation, neither Tailwind nor, to Tailwind’s knowledge, any of its Representatives or any other Persons acting for or on behalf of Tailwind, is or has been, (i) a Person named on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Entity; (ii) located, organized or resident in a country or territory which is itself the subject of or target of any Sanctions and Export Control Laws; (iii) an entity owned, directly or indirectly, by one or more Persons described in clause (i) or (ii); or (iv) otherwise engaging in dealings with or for the benefit of any Person described in clauses (i) - (iii) or any country or territory which is or has, since Tailwind’s incorporation, been the subject of or target of any Sanctions and Export Control Laws (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea, Venezuela, Sudan and Syria).
(b) Since Tailwind’s incorporation, neither Tailwind nor, to Tailwind’s knowledge, any of its Representatives or any other Persons acting for or on behalf of Tailwind has (i) made, offered, promised, paid or received any unlawful bribes, kickbacks or other similar payments to or from any Person, (ii) made or paid any contributions, directly or indirectly, to a domestic or foreign political party or candidate or (iii) otherwise made, offered, received, authorized, promised or paid any improper payment under any Anti-Corruption Laws.
Section 4.17 Investigation; No Other Representations.
(a) Each Tailwind Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects, of the Group Companies and (ii) it has been furnished with or given access to such documents and information about the Group Companies and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.
(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each Tailwind Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3, Section 8.19(e) and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of the Company or any other Person, either express or implied, and each Tailwind Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 3, Section 8.19(e) and in the Ancillary Documents to which it is or will be a party, neither the Company nor any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
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Section 4.18 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO the COMPANY OR ANY OF ITS REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS Article 4 OR THE ANCILLARY DOCUMENTS, NONE OF THE Tailwind PARTIES OR ANY OTHER PERSON MAKES, and EACH Tailwind PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR ANY OF the TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE Tailwind PARTIES THAT HAVE BEEN MADE AVAILABLE TO THE COMPANY OR ANY OF ITS REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE Tailwind PARTIES BY OR ON BEHALF OF THE MANAGEMENT OF ANY Tailwind PARTY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY THE COMPANY OR ANY OF ITS REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY or THEREBY. Except for the representations and warranties expressly set forth in Article 4 or the ancillary DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY Tailwind party ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ANY Tailwind PARTY, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY THE COMPANY OR ANY OF ITS REPRESENTATIVES IN EXECUTING, DELIVERING or PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS or THE TRANSACTIONS CONTEMPLATED Hereby or thereby.
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Article 5
COVENANTS
Section 5.1 Conduct of Business of the Company.
(a) From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(a) of the Company Disclosure Schedules, or as consented to in writing by Tailwind (such consent not to be unreasonably withheld, conditioned or delayed), (i) operate the business of the Group Companies in the ordinary course in all material respects and (ii) use reasonable best efforts to maintain and preserve intact the business organization, assets, properties and business relations of the Group Companies.
(b) Without limiting the generality of the foregoing, from and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall, and the Company shall cause its Subsidiaries to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(b) of the Company Disclosure Schedules or as consented to in writing by Tailwind (such consent, other than in the case of Section 5.1(b)(i), Section 5.1(b)(ii), Section 5.1(b)(iv)(A), Section 5.1(b)(v), Section 5.1(b)(vii) (but only to the extent relating to any Material Contract of the type described in Section 3.7(a)(v), Section 3.7(a)(ix), or Section 3.7(a)(xi)(B)), Section 5.1(b)(viii), Section 5.1(b)(xii), Section 5.1(b)(xiv), Section 5.1(b)(xv) or Section 5.1(b)(xvii) (to the extent related to any of the foregoing), not to be unreasonably withheld, conditioned or delayed), not do any of the following:
(i) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any Equity Securities of any Group Company or repurchase or redeem any outstanding Equity Securities of any Group Company, other than dividends or distributions, declared, set aside or paid by any of the Company’s Subsidiaries to the Company or any Subsidiary that is, directly or indirectly, wholly owned by the Company;
(ii) (A) merge, consolidate, combine or amalgamate any Group Company with any Person or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Security in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, association or other business entity or organization or division thereof, other than the Pipeline Acquisitions in accordance with Section 5.21;
(iii) adopt any amendments, supplements, restatements or modifications to any Group Company’s Governing Documents or the Company Stockholders Agreements;
(iv) (A) sell, assign, abandon, lease, license or otherwise dispose of any material assets or properties of the Group Companies, other than inventory or obsolete equipment in the ordinary course of business, or (B) create, subject or incur any Lien any material assets or properties of the Group Companies (other than any Permitted Liens);
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(v) transfer, issue, sell, grant or otherwise directly or indirectly dispose of, or subject to a Lien, (A) any Equity Securities of any Group Company or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating any Group Company to issue, deliver or sell any Equity Securities of any Group Company, other than, prior to the delivery of the Allocation Schedule pursuant to Section 2.3(b), the issuance of the Company Common Shares upon the exercise of any Company Options outstanding as of the date of this Agreement in accordance with the terms of the Company Equity Plan and the underlying grant, award or similar agreement;
(vi) incur, create or assume any Indebtedness, other than (A) ordinary course trade payables and (B) indebtedness to the Bridge Investors under the Bridge Financing Agreement, which will be satisfied and discharged in full if the Effective Time occurs on the terms, and subject to the conditions, under each applicable Bridge Financing Agreement;
(vii) (A) amend, modify or terminate any Material Contract of the type described in Section 3.7(a)(iv), Section 3.7(a)(v), Section 3.7(a)(ix), Section 3.7(a)(x) or Section 3.7(a)(xi)(B) (such types of Material Contracts, collectively, the “Designated Material Contracts”) (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any Designated Material Contract pursuant to its terms or entering into additional work or purchase orders pursuant to, and in accordance with the terms of, any Designated Material Contract), (B) waive any material benefit or right under any Designated Material Contract or (C) enter into any Contract that would constitute a Designated Material Contract;
(viii) make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any Person, other than (A) intercompany loans or capital contributions between the Company and any of its wholly owned Subsidiaries and (B) the reimbursement of expenses of employees in the ordinary course of business consistent with past practice;
(ix) except as required under the terms of any Employee Benefit Plan of any Group Company that is set forth on the Section 3.11(a) of the Company Disclosure Schedules, (A) amend, modify, adopt, enter into or terminate any material Employee Benefit Plan of any Group Company or any material benefit or compensation plan, policy, program or Contract that would be an Employee Benefit Plan if in effect as of the date of this Agreement, (B) materially increase or decrease the compensation or benefits payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company whose annual base salary or base compensation is in excess of $250,000 or (C) take any action to accelerate any payment, right to payment, or benefit, or the funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, manager, officer, employee, individual independent contractor or other service provider of any Group Company;
(x) make, change or revoke any material election concerning Taxes, enter into any material Tax closing agreement, settle any material Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any material Tax claim or assessment, other than any such extension or waiver that is obtained in the ordinary course of business;
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(xi) enter into any settlement, conciliation or similar Contract the performance of which would involve the payment by the Group Companies in excess of $500,000, in the aggregate, or that imposes, or by its terms will impose at any point in the future, any material, non-monetary obligations on any Group Company (or Tailwind or any of its Affiliates after the Closing);
(xii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving any Group Company;
(xiii) change any Group Company’s methods of accounting in any material respect, other than changes that are made in accordance with PCAOB standards;
(xiv) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement or any Ancillary Document;
(xv) make any Change of Control Payment that is not set forth on Section 5.1(b)(xv) of the Company Disclosure Schedules;
(xvi) (A) enter into any CBA or recognize any labor union, labor organization, works council, or group of employees as the bargaining representative for any employees of the Group Company or (B) implement or announce any employee layoffs, plant closings, reductions in force, furloughs or other similar actions that would require notice under WARN; or
(xvii) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.1.
Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, (a) nothing set forth in this Agreement shall give Tailwind, directly or indirectly, the right to control or direct the operations of the Group Companies prior to the Closing, (b) any action taken, or omitted to be taken, by any Group Company to the extent such act or omission is reasonably determined by the Company, based on the advice of outside legal counsel, to be necessary to comply with any Law, Order, directive, pronouncement or guideline issued by a Governmental Entity providing for business closures, “sheltering-in-place” or other restrictions that relates to, or arises out of, COVID-19 shall in no event be deemed to constitute a breach of this Section 5.1 and (c) any action taken, or omitted to be taken, by any Group Company to the extent that the Company Board reasonably determines that such act or omission is necessary in response to COVID-19 to maintain and preserve in all material respects the business organization, assets, properties and material business relations of the Group Companies, taken as a whole, shall not be deemed to constitute a breach of this Section 5.1; provided, however, (i) in the case of each of clause (b) and (c), the Company shall give Tailwind prior written notice of any such act or omission to the extent reasonably practicable, which notice shall describe in reasonable detail the act or omission and the reason(s) that such act or omission is being taken, or omitted to be taken, pursuant to clause (b) or (c) and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this clause (i), the Company shall instead give such written notice to Tailwind promptly after such act or omission and (ii) in no event shall clause (b) or (c) be applicable to any act or omission of the type described in Section 5.1(b)(i) through Section 5.1(b)(v), Section 5.1(b)(vii), Section 5.1(b)(viii), Section 5.1(b)(ix)(C), Section 5.1(b)(xii) through Section 5.1(b)(xv) or Section 5.1(b)(xvii) (to the extent related to any of the foregoing).
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Section 5.2 Efforts to Consummate.
(a) Subject to the terms and conditions herein provided, each of the Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the transactions contemplated by this Agreement (including (i) the satisfaction, but not waiver, of the closing conditions set forth in Article 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and delivery such Ancillary Document when required pursuant to this Agreement, and (ii) using reasonable best efforts to obtain the PIPE Financing on the terms and subject to the conditions set forth in the PIPE Subscription Agreements). Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities or other Persons necessary, proper or advisable to consummate the transactions contemplated by this Agreement or the Ancillary Documents (such Consents, the “Third-Party Consents”). (A) The Company and Tailwind shall each bear fifty percent (50%) of the HSR Act filing fee, any filing fees or other costs payable to a Governmental Entity in connection the preparation, filing or mailing of the Registration Statement / Proxy Statement and any printing, mailing or similar fees or costs in connection with the preparation, filing or mailing of the Registration Statement / Proxy Statement and (B) subject to Section 8.6 and the immediately preceding clause (A), each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any Third-Party Consents. Each Party shall (x) make any appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event within five (5) Business Days) following the date of this Agreement and (y) respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the HSR Act. Tailwind shall promptly inform the Company of any communication between any Tailwind Party, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform Tailwind of any communication between the Company or the Company Stockholder Representative, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of Tailwind and the Company. Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities of any Group Company or any entity, facility or asset of such Party or any of its Affiliates, (2) terminate, amend or assign existing relationships and contractual rights or obligations, (3) amend, assign or terminate existing licenses or other agreements or (4) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures with respect to any other Party or any of its Affiliates, except with Tailwind’s and the Company’s prior written consent.
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(b) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, the Tailwind Parties, on the one hand, and the Company and the Company Stockholder Representative, on the other hand, shall give counsel for the Company (in the case of any Tailwind Party) or Tailwind (in the case of the Company or the Company Stockholder Representative), a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of any Tailwind Party, the Company, or, in the case of the Company or the Company Stockholder Representative, Tailwind in advance and, to the extent not prohibited by such Governmental Entity, gives, in the case of any Tailwind Party, the Company, or, in the case of the Company or the Company Stockholder Representative, Tailwind, the opportunity to attend and participate in such meeting or discussion.
(c) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article 5 that is intended to specifically address any subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.
(d) From and after the date of this Agreement until the earlier of the Closing or termination of this Agreement in accordance with its terms, Tailwind, on the one hand, and the Company, on the other hand, shall each notify the other in writing promptly after learning of any shareholder demands or other shareholder Proceedings (including derivative claims) relating to this Agreement, any Ancillary Document or any matters relating thereto (collectively, the “Transaction Litigation”) commenced against, in the case of Tailwind, Tailwind or any of its Representatives (in their capacity as a Representative of Tailwind) or, in the case of the Company, any Group Company or any of their respective Representatives (in their capacity as a Representative of Tailwind). Tailwind and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation and (iv) reasonably cooperate with each other; provided, however, that (x) in no event shall the Group Company or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of Tailwind (not to be unreasonably withheld, conditioned or delayed), and in no event shall Tailwind or any of its Representatives settle or compromise any Transaction Litigation without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed); provided, that it shall be deemed to be reasonable for Tailwind or the Company, as applicable, to withhold, condition or delay its consent if any such settlement or compromise (A) does not provide for a legally binding, full, unconditional and irrevocable release of the Tailwind Party and/or any of its Representatives (in the case of any consent by Tailwind) or the Company and/or any of its Representatives (in the case of any consent by the Company) that is or are, as applicable, the subject of such Transaction Litigation (if any), (B) provides for (x) any cash payment that is payable by any Tailwind Party or any of its Representatives (in the case of any consent by Tailwind) or the Company or any of its Representatives (in the case of any consent by the Company) or would otherwise constitute a Liability of any Tailwind Party of any of its Representatives (in the case of Tailwind) or the Company or any of its Representatives (in the case of any consent by the Company) or (y) any non-monetary, injunctive, equitable or similar relief against any Tailwind Party or any of its Representatives (in the case of any consent by Tailwind) or the Company or any of its Representatives (in the case of any consent by the Company) or (C) contains an admission of wrongdoing or Liability by any Tailwind Party or any of its Representatives (in the case of any consent by Tailwind) or the Company or any of its Representatives (in the case of any consent by the Company).
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Section 5.3 Confidentiality and Access to Information.
(a) The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the transactions contemplated hereby is subject to the terms of the Confidentiality Agreement, the terms of which are incorporated herein by reference. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 5.3(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained in this Agreement or any Ancillary Document that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained in this Agreement or such Ancillary Document, as applicable, shall govern and control to the extent of such conflict.
(b) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, the Company shall provide, or cause to be provided, to Tailwind and its Representatives during normal business hours reasonable access to the directors, officers, books and records and properties of the Group Companies (in a manner so as to not interfere with the normal business operations of the Group Companies). Notwithstanding the foregoing, none of the Group Companies shall be required to provide to Tailwind or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Group Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any Group Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any Group Company under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), the Company shall, and shall cause the other Group Companies to, use reasonable best efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if any Group Company, on the one hand, and any Tailwind Party or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.
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(c) From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, upon reasonable advance written notice, Tailwind shall provide, or cause to be provided, to the Company and its Representatives during normal business hours reasonable access to the directors, officers, books and records of the Tailwind Parties (in a manner so as to not interfere with the normal business operations of the Tailwind Parties). Notwithstanding the foregoing, Tailwind shall not be required to provide, or cause to be provided to, the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Tailwind Party is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any Tailwind Party with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any Tailwind Party under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), Tailwind shall use, and shall cause the other Tailwind Parties to use, reasonable best efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if a Tailwind Party, the Tailwind Sponsor or any of their respective Representatives, on the one hand, and any Group Company, the Company Stockholder Representative or any of their respective Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that Tailwind shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis unless such written notice is prohibited by applicable Law.
(d) The Parties hereby acknowledge and agree that the Confidentiality Agreement shall be automatically terminated effective as of the Closing without any further action by any Party or any other Person.
Section 5.4 Public Announcements.
(a) Subject to Section 5.4(b), Section 5.7 and Section 5.8, none of the Parties or any of their respective Representatives shall issue any press releases or make any public announcements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of, prior to the Closing, the Company and Tailwind or, after the Closing, Tailwind and the Tailwind Sponsor; provided, however, that each Party, the Tailwind Sponsor and their respective Representatives may issue or make, as applicable, any such press release, public announcement or other communication (i) if such press release, public announcement or other communication is required by applicable Law, in which case (A) prior to the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (x) if the disclosing Person is a Tailwind Party or a Representative of a Tailwind Party, reasonably consult with the Company in connection therewith and provide the Company with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith, or (y) if the disclosing Party is the Company, the Company Stockholder Representative or a Representative of the Company or the Company Stockholder Representative, reasonably consult with Tailwind in connection therewith and provide Tailwind with an opportunity to review and comment on such press release, public announcement or communication and shall consider any such comments in good faith, or (B) after the Closing, the disclosing Party or its applicable Representatives shall, unless and to the extent prohibited by such applicable Law, (x) if the disclosing Person is the Tailwind Sponsor or a Representative of the Tailwind Sponsor, reasonably consult with Tailwind in connection therewith and provide Tailwind with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, (y) if the disclosing Person is the Company Stockholder Representative or a Representative of the Company Stockholder Representative, reasonably consult with Tailwind and the Tailwind Sponsor in connection therewith and provide Tailwind and the Tailwind Sponsor with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, and (z) if the disclosing Person is Tailwind or a Representative of Tailwind, reasonably consult with the Tailwind Sponsor in connection therewith and provide the Tailwind Sponsor with an opportunity to review and comment on such press release, public announcement or communication and consider any such comments in good faith, (ii) to the extent such press release, public announcements or other communications contain only information previously disclosed in a press release, public announcement or other communication previously made in accordance with this Section 5.4 and (iii) to Governmental Entities in connection with any Consents required to be made under this Agreement, the Ancillary Documents or in connection with the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary in this Section 5.4 or otherwise in this Agreement, the Parties agree that the Tailwind Parties and their respective Representatives may provide general information about the subject matter of this Agreement and the transactions contemplated hereby to any direct or indirect former, current or prospective investor or in connection with normal fund raising or related marketing or informational or reporting activities.
(b) The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and Tailwind prior to the execution of this Agreement and such initial press release (the “Signing Press Release”) shall be released as promptly as reasonably practicable after the execution of this Agreement on the day thereof. Promptly after the execution of this Agreement, Tailwind shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the Securities Laws, which the Company shall have the opportunity to review and comment upon prior to filing and Tailwind shall consider such comments in good faith. The Company, on the one hand, and Tailwind, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or Tailwind, as applicable) a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”) prior to the Closing, and, on the Closing Date (or such other date as may be mutually agreed to in writing by Tailwind and the Company prior to the Closing), the Parties shall cause the Closing Press Release to be released. Promptly after the Closing (but in any event within four (4) Business Days after the Closing), Tailwind shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Securities Laws, which Closing Filing shall be mutually agreed upon by the Company and Tailwind prior to the Closing (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or Tailwind, as applicable). In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.
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Section 5.5 Tax Matters.
(a) Tax Treatment.
(i) The Parties intend that the Merger shall constitute a transaction treated as a “reorganization” within the meaning of Section 368(a) of the Code, and each Party shall, and shall cause its respective Affiliates to, use reasonable best efforts to cause the Merger to so qualify and shall file all Tax Returns consistent with, and take no position inconsistent with (whether in audits, Tax Returns or otherwise), such treatment unless required to do so pursuant to a “determination” that is final within the meaning of Section 1313(a) of the Code.
(ii) Tailwind and the Company hereby adopt this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a). The Parties shall not take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or would reasonably be expected to prevent or impede, the Intended Tax Treatment.
(b) Tax Matters Cooperation. Each of the Parties shall (and shall cause their respective Affiliates to) cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of relevant Tax Returns, and any audit or Tax Proceeding. Such cooperation shall include the retention and (upon the other Party’s request) the provision (with the right to make copies) of records and information reasonably relevant to any tax proceeding or audit, making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(c) Transfer Taxes. If the Effective Time occurs, Transfer Taxes, if any, shall be borne by Tailwind.
Section 5.6 Exclusive Dealing.
(a) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Company shall not, and shall cause the other Group Companies and its and their respective Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare or make any filings with the SEC in connection with a public offering of any Equity Securities or other securities of any Group Company (or any Affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than the Tailwind Parties) to do or seek to do any of the foregoing. The Company agrees to (A) notify Tailwind promptly upon receipt of any Company Acquisition Proposal by any Group Company, and to describe the material terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Persons making such Company Acquisition Proposal) and (B) keep Tailwind reasonably informed on a current basis of any modifications to such offer or information.
(b) From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, the Tailwind Parties shall not, and each of them shall cause their Representatives not to, directly or indirectly: (i) solicit, initiate, encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Tailwind Acquisition Proposal; (ii) furnish or disclose any non-public information to any Person in connection with, or that could reasonably be expected to lead to, a Tailwind Acquisition Proposal; (iii) enter into any Contract or other arrangement or understanding regarding a Tailwind Acquisition Proposal; or (iv) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than any Group Company) to do or seek to do any of the foregoing. Tailwind agrees to (A) notify the Company promptly upon receipt of any Tailwind Acquisition Proposal by any Tailwind Party, and to describe the material terms and conditions of any such Tailwind Acquisition Proposal in reasonable detail (including the identity of any person or entity making such Tailwind Acquisition Proposal) and (B) keep the Company reasonably informed on a current basis of any modifications to such offer or information.
For the avoidance of doubt, it is understood and agreed that the covenants and agreements contained in this Section 5.6 shall not prohibit the Company, any Tailwind Party or any of their respective Representatives from taking any actions in the ordinary course that are not otherwise in violation of this Section 5.6 (such as answering phone calls) or informing any Person inquiring about a possible Company Acquisition Proposal or Tailwind Acquisition Proposal, as applicable, of the existence of the covenants and agreements contained in this Section 5.6.
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Section 5.7 Preparation of Registration Statement / Proxy Statement. As promptly as reasonably practicable following the date of this Agreement, Tailwind and the Company shall prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either of Tailwind or the Company, as applicable), and Tailwind shall file with the SEC (which, for the avoidance of doubt, shall be no earlier than the delivery of the Initial Required Closing Financial Statements by the Company to Tailwind pursuant to Section 5.17(a)), the Registration Statement / Proxy Statement (it being understood that the Registration Statement / Proxy Statement shall include a proxy statement / prospectus of Tailwind which will be included therein and which will be used for the Tailwind Stockholders Meeting to adopt and approve the Transaction Proposals and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by Tailwind’s Governing Documents, applicable Law, and any applicable rules and regulations of the SEC and NYSE). Each of Tailwind and the Company shall use its reasonable best efforts to (a) cause the Registration Statement / Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to the Group Companies, the provision of financial statements of, and any other information with respect to, the Group Companies for all periods, and in the form, required to be included in the Registration Statement / Proxy Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC); (b) promptly notify the others of, reasonably cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff; (c) have the Registration Statement / Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and (d) keep the Registration Statement / Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement. Tailwind, on the one hand, and the Company, on the other hand, shall promptly furnish, or cause to be furnished, to the other all information concerning such Party and its Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 5.7 or for inclusion in any other statement, filing, notice or application made by or on behalf of Tailwind to the SEC or NYSE in connection with the transactions contemplated by this Agreement or the Ancillary Documents, including delivering customary tax representation letters to counsel to enable counsel to deliver any tax opinions requested or required by the SEC to be submitted in connection therewith. If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the Registration Statement / Proxy Statement (including any such information with respect to either Pipeline Acquisition, the Sentar Closing Financial Statements or the RPC Tyche Closing Financial Statements), then (i) such Party shall promptly inform, in the case of any Tailwind Party, the Company, or, in the case of the Company or the Company Stockholder Representative, Tailwind, thereof; (ii) such Party shall prepare and mutually agree upon with, in the case of Tailwind, the Company, or, in the case of the Company, Tailwind (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), an amendment or supplement to the Registration Statement / Proxy Statement; (iii) Tailwind shall file such mutually agreed upon amendment or supplement with the SEC; and (iv) the Parties shall reasonably cooperate, if appropriate, in mailing such amendment or supplement to the Pre-Closing Tailwind Stockholders. Tailwind shall as promptly as reasonably practicable advise the Company of the time of effectiveness of the Registration Statement / Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of Tailwind Shares for offering or sale in any jurisdiction, and Tailwind and the Company shall each use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Parties shall use reasonable best efforts to ensure that none of the information related to him, her or it or any of his, her or its Representatives, supplied by or on his, her or its behalf for inclusion or incorporation by reference in the Registration Statement / Proxy Statement will, at the time the Registration Statement / Proxy Statement is initially filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
Section 5.8 Tailwind Stockholder Approval. As promptly as reasonably practicable following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, Tailwind shall (a) duly give notice of and (b) use reasonable best efforts to duly convene and hold a meeting of its stockholders (the “Tailwind Stockholders Meeting”) in accordance with the Governing Documents of Tailwind, for the purposes of obtaining the Tailwind Stockholder Approval and, if applicable, any approvals related thereto and providing its applicable stockholders with the opportunity to elect to effect a Tailwind Stockholder Redemption. Except as otherwise required by applicable Law, (i) Tailwind shall, through the unanimous approval of the Tailwind Board, recommend to its Stockholders (the “Tailwind Board Recommendation”), (A) the adoption and approval of this Agreement and the transactions contemplated hereby (including the Merger) (the “Business Combination Proposal”); (B) the adoption and approval of the issuance of the Tailwind Shares in connection with the transactions contemplated by this Agreement as required by NYSE listing requirements (the “NYSE Proposal”); (C) the adoption and approval of the Post-Closing Tailwind Certificate of Incorporation (the “Required Governing Document Proposal”); (D) the adoption and approval of certain differences between the Pre-Closing Tailwind Governing Documents and the proposed Post-Closing Tailwind Certificate of Incorporation and the proposed Post-Closing Tailwind Bylaws (collectively, the “Other Governing Document Proposals”); (E) the adoption and approval of the Tailwind Incentive Equity Plan (the “Incentive Equity Plan Proposal”); (F) the adoption and approval of each other proposal that either the SEC or NYSE (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement / Proxy Statement or in correspondence related thereto; (G) the adoption and approval of each other proposal reasonably agreed to by Tailwind and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents; and (H) the adoption and approval of a proposal for the postponement or adjournment of the Tailwind Stockholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (A) through (H), collectively, the “Transaction Proposals”), and (ii) Tailwind shall include such recommendation contemplated by clause (i) in the Registration Statement / Proxy Statement. Notwithstanding the foregoing or anything to the contrary herein, Tailwind may postpone or adjourn the Tailwind Stockholders Meeting (1) to solicit additional proxies for the purpose of obtaining the Tailwind Stockholder Approval, (2) for the absence of a quorum, (3) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that Tailwind has determined, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing Tailwind Stockholders prior to the Tailwind Stockholders Meeting or (4) if the holders of Tailwind Class A Shares have elected to redeem a number of Tailwind Class A Shares as of such time that would reasonably be expected to result in the condition set forth in Section 6.1(h) not being satisfied; provided that, without the consent of the Company, in no event shall Tailwind adjourn the Tailwind Stockholders Meeting for more than fifteen (15) Business Days later than the most recently adjourned meeting or to a date that is beyond the Termination Date. Except as otherwise required by applicable Law, Tailwind covenants that none of the Tailwind Board or Tailwind nor any committee of the Tailwind Board shall withdraw or modify, or propose publicly or by formal action of the Tailwind Board, any committee of the Tailwind Board or Tailwind to withdraw or modify, in a manner adverse to the Company, the Tailwind Board Recommendation or any other recommendation by the Tailwind Board or Tailwind of the proposals set forth in the Registration Statement / Proxy Statement.
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Section 5.9 Merger Sub Stockholder Approval. As promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, Tailwind, as the sole stockholder of Merger Sub, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub is or will be a party and the transactions contemplated hereby and thereby (including the Merger).
Section 5.10 Conduct of Business of Tailwind. From and after the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Tailwind shall not, and shall cause its Subsidiaries not to, as applicable, except as expressly contemplated by this Agreement or any Ancillary Document (including, for the avoidance of doubt, in connection with the PIPE Financing), as required by applicable Law, as set forth on Section 5.10 of the Tailwind Disclosure Schedules or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:
(a) adopt any amendments, supplements, restatements or modifications to the Trust Agreement or the Governing Documents of any Tailwind Party;
(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, its Equity Securities, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any outstanding of its Equity Securities;
(c) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;
(d) incur, create or assume any Indebtedness, except for Indebtedness for borrowed money in an amount not to exceed $1,500,000 in the aggregate;
(e) make any loans or advances to, or capital contributions in, any other Person, other than to, or in, Tailwind or any of its Subsidiaries;
(f) issue any Equity Securities or grant any additional options or stock appreciation rights with respect to its Equity Securities;
(g) (i) amend, modify or renew any Tailwind Related Party Transaction, or (ii) enter into any Contract that would constitute a Tailwind Related Party Transaction;
(h) engage in any activities or business, or incur any material Liabilities, other than any activities, businesses or Liabilities that are either permitted under this Section 5.10 (including, for the avoidance of doubt, any activities, businesses or Liabilities contemplated by, incurred in connection with or that are otherwise incidental or attendant to this Agreement or any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby) or in accordance with this Section 5.10;
(i) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution;
(j) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by this Agreement; or
(k) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10.
Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of any Tailwind Party and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, any Tailwind Party from using the funds held by a Tailwind Party outside the Trust Account to pay any Tailwind Expenses or other Liabilities of any Tailwind Party or from otherwise distributing or paying over any funds held by Tailwind outside the Trust Account to the Tailwind Sponsor or any of its Affiliates, in each case, prior to the Closing.
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Section 5.11 NYSE Listing. Tailwind shall use its reasonable best efforts to (a) cause the Tailwind Shares issuable in accordance with this Agreement and the transactions contemplated hereunder to be approved for listing on NYSE, subject to official notice of issuance thereof, and (b) to satisfy any applicable initial and continuing listing requirements of NYSE, in each case as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Effective Time. The Company shall, and shall cause its Representatives to, reasonably cooperate with Tailwind and its Representatives in connection with the foregoing.
Section 5.12 Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 6 and provision of notice thereof to the Trustee, (a) at the Closing, Tailwind shall (i) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) make all appropriate arrangements to cause the Trustee to (A) pay as and when due all amounts, if any, payable to the Public Stockholders of Tailwind pursuant to the Tailwind Stockholder Redemption, (B) pay the amounts due to the underwriters of Tailwind’s initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement and (C) immediately thereafter, pay all remaining amounts then available in the Trust Account to Tailwind in accordance with the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
Section 5.13 Transaction Support Agreements; Company Stockholder Approval.
(a) As promptly as reasonably practicable (and in any event within one (1) Business Day) following the date of this Agreement (the “Transaction Support Agreement Deadline”), the Company shall deliver, or cause to be delivered, to Tailwind the Transaction Support Agreements duly executed by each Supporting Company Stockholder.
(b) As promptly as reasonably practicable (and in any event within one (1) Business Day) following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act (the “Company Stockholder Written Consent Deadline”), the Company shall obtain and deliver to Tailwind a true and correct copy of a written consent (in form and substance reasonably satisfactory to Tailwind) approving this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) that is duly executed by the Company Stockholders that hold at least the requisite number of issued and outstanding Company Common Shares and Voting Company Preferred Shares required to approve and adopt such matters in accordance with the DGCL, the Company’s Governing Documents and the Company Stockholders Agreements (the “Company Stockholder Written Consent”). The Company, through the unanimous approval of the Company Board, shall recommend to the holders of Company Shares the approval and adoption of this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Merger) (the “Company Board Recommendation”).
(c) Promptly following the receipt of the Company Stockholder Written Consent, the Company shall prepare and deliver to each Company Stockholder who has not executed and delivered the Company Stockholder Written Consent an information statement, in form and substance required under the DGCL in connection with the Merger and otherwise reasonably satisfactory to Tailwind, which information statement shall include (i) copies of this Agreement and the Registration Statement / Proxy Statement, (ii) the Company Board Recommendation, (iii) a description of any dissenters’ rights of the Company Stockholders available under Section 262 of the DGCL and any other disclosure with respect to dissenters’ rights required by applicable Law and (iv) in accordance with the requirements of Section 228(e) of the DGCL, notice to any Company Stockholder who has not executed and delivered the Company Stockholder Written Consent of the corporate action by those Company Stockholders who did execute the Company Stockholder Written Consent.
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Section 5.14 Tailwind Indemnification; Directors’ and Officers’ Insurance.
(a) Each Party agrees that (i) all rights to indemnification or exculpation now existing in favor of the directors and officers of each Tailwind Party, as provided in the applicable Tailwind Party’s Governing Documents or otherwise in effect as of immediately prior to the Effective Time, in either case, solely with respect to any matters occurring on or prior to the Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Effective Time for a period of six (6) years and (ii) Tailwind will perform and discharge, or cause to be performed and discharged, all obligations to provide such indemnity and exculpation during such six (6)-year period. To the maximum extent permitted by applicable Law, during such six (6)-year period, Tailwind shall advance, or caused to be advanced, expenses in connection with such indemnification as provided in the applicable Tailwind Party’s Governing Documents or other applicable agreements as in effect immediately prior to the Effective Time. The indemnification and liability limitation or exculpation provisions of the Tailwind Parties’ Governing Documents shall not, during such six (6)-year period, be amended, repealed or otherwise modified following the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the Effective Time, or at any time prior to such time, were directors or officers of any Tailwind Party (the “Tailwind D&O Persons”) entitled to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring on or prior to the Effective Time and relating to the fact that such Tailwind D&O Person was a director or officer of any Tailwind Party on or prior to the Effective Time, unless such amendment, repeal or other modification is required by applicable Law.
(b) Tailwind shall not have any obligation under this Section 5.14 to any Tailwind D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such Tailwind D&O Person in the manner contemplated hereby is prohibited by applicable Law.
(c) Tailwind shall purchase, at or prior to the Effective Time, and maintain in effect for a period of six (6) years following the Effective Time, without lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Tailwind Parties in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time. Such “tail” policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby) the coverage provided under the Tailwind Parties’ directors’ and officers’ liability insurance policies in effect as of the date of this Agreement; provided that Tailwind shall not be obligated to pay a premium for such “tail” policy in excess of three-hundred percent (300%) of the most recent policy term premium paid by the Tailwind prior to the date of this Agreement and, in such event, Tailwind shall purchase the maximum coverage available for three-hundred (300%) of the most recent policy term premium paid by Tailwind prior to the date of this Agreement.
(d) If Tailwind or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of Tailwind shall assume all of the obligations set forth in this Section 5.14.
(e) The Persons entitled to the indemnification, liability limitation, exculpation or insurance coverage set forth in this Section 5.14 are intended to be third-party beneficiaries of this Section 5.14. This Section 5.14 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of Tailwind.
Section 5.15 Company Indemnification; Directors’ and Officers’ Insurance.
(a) Each Party agrees that (i) all rights to indemnification or exculpation now existing in favor of the directors and officers of the Group Companies, as provided in the Group Companies’ Governing Documents or otherwise in effect as of immediately prior to the Effective Time, in either case, solely with respect to any matters occurring on or prior to the Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Effective Time for a period of six (6) years and (ii) Tailwind will cause the applicable Group Companies to perform and discharge all obligations to provide such indemnity and exculpation during such six (6)-year period. To the maximum extent permitted by applicable Law, during such six (6)-year period, Tailwind shall cause the applicable Group Companies to advance expenses in connection with such indemnification as provided in the Group Companies’ Governing Documents or other applicable agreements in effect as of immediately prior to the Effective Time. The indemnification and liability limitation or exculpation provisions of the Group Companies’ Governing Documents shall not, during such six (6)-year period, be amended, repealed or otherwise modified following the Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of the Effective Time or at any time prior to the Effective Time, were directors or officers of the Group Companies (the “Company D&O Persons”) entitled to be so indemnified, have their liability limited or be exculpated with respect to any matters occurring prior to Closing and relating to the fact that such Company D&O Person was a director or officer of any Group Company on or prior to the Effective Time, unless such amendment, repeal or other modification is required by applicable Law.
(b) None of Tailwind or the Group Companies shall have any obligation under this Section 5.15 to any Company D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such Company D&O Person in the manner contemplated hereby is prohibited by applicable Law.
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(c) The Company shall purchase, at or prior to the Effective Time, and Tailwind shall maintain, or cause to be maintained, in effect for a period of six (6) years following the Effective Time, without lapses in coverage, a “tail” policy providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Group Companies in effect as of the date of this Agreement with respect to matters occurring on or prior to the Effective Time. Such “tail” policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the Persons covered thereby) the coverage provided under the Group Companies’ directors’ and officers’ liability insurance policies in effect as of the date of this Agreement; provided that none of the Company, Tailwind or any their respective Affiliates shall pay a premium for such “tail” policy in excess of three-hundred percent (300%) of the most recent annual premium paid by the Group Companies prior to the date of this Agreement and, in such event, the Company or one of its Affiliates shall purchase the maximum coverage available for three-hundred (300%) of the most recent annual premium paid by the Group Companies prior to the date of this Agreement.
(d) If Tailwind or any of its successors or assigns (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger or (ii) shall transfer all or substantially all of their respective properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of Tailwind shall assume all of the obligations set forth in this Section 5.15.
(e) The Persons entitled to the indemnification, liability limitation, exculpation or insurance coverage set forth in this Section 5.15 are intended to be third-party beneficiaries of this Section 5.15. This Section 5.15 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of Tailwind.
Section 5.16 Post-Closing Directors and Officers.
(a) Each of Tailwind and the Company shall take all such action within its power as may be necessary or appropriate such that effective immediately after the Effective Time: (i) the Tailwind Board shall consist of seven (7) directors, which shall be divided into three (3) classes, designated Class I, II and III, with Class I consisting of two (2) directors, Class II consisting of two (2) directors and Class III consisting of three (3) directors; (ii) the members of the Tailwind Board are the individuals determined in accordance with Section 5.16(b), Section 5.16(c), Section 5.16(d) and Section 5.16(e) (provided, however, that in the event that any Person or group of Persons entitled to designate a member of the Tailwind Board pursuant to this Section 5.16 fails to provide written notice of such designation prior to the time at which the Registration Statement / Proxy Statement is declared effective, such member of the Tailwind Board shall be designated by agreement of a majority of the other Persons then designated to serve on the Tailwind Board following the Effective Time); (iii) the members of the compensation committee, audit committee and nominating committee of the Tailwind Board are the individuals determined in accordance with Section 5.16(f); and (iv) the officers of Tailwind (the “Officers”) are the individuals determined in accordance with Section 5.16(g).
(b) Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company shall designate one (1) individual to serve as Class II director on the Tailwind Board and one (1) individual to serve as a Class III director on the Tailwind Board, in each case, immediately after the Effective Time (each, a “Company Designee”). Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company may, by giving Tailwind and the Tailwind Sponsor written notice, replace any Company Designee with any other individual. Notwithstanding the foregoing or anything to the contrary herein, unless otherwise agreed in writing by Tailwind and the Tailwind Sponsor, in no event shall there be any Company Designee that would not qualify as “independent directors” under the listing rules of NYSE immediately after the Effective Time (whether as a result of the replacement of any Company Designee as contemplated by this Section 5.16(b) or otherwise).
(c) The individual identified on Section 5.16(c) of the Company Disclosure Schedule shall be a director on the Tailwind Board immediately after the Effective Time, with such individual being in the class of directors set forth opposite his or her name (the “Company CEO Designee”). The Company CEO Designee may not be replaced with any individual without the prior written consent of the Company and Tailwind; provided, however, that neither the Company nor Tailwind shall unreasonably withhold, condition or delay its consent to the replacement of the Company CEO Designee with any individual that is hired by the Company as a replacement Chief Executive Officer prior to the Closing as a result of the death, disability or termination of employment for cause by the Company of the initial Company CEO Designee.
(d) Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Cannae PIPE Investor shall designate one (1) individual to serve as a Class III director on the Tailwind Board immediately after the Effective Time (the “Cannae Designee”). Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Cannae PIPE Investor may, by giving the Company, Tailwind and the Tailwind Sponsor written notice, replace the Cannae Designee with any other individual.
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(e) Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Tailwind Sponsor shall, after reasonably consulting with the Company, designate two (2) individuals to serve as Class I directors on the Tailwind Board and one (1) individual to serve as a Class II director on the Tailwind Board, in each case, immediately after the Effective Time (the “Tailwind Designees”). Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Tailwind Sponsor may, by giving the Company written notice, replace any Tailwind Designee with any other individual and after reasonably consulting with the Company. Notwithstanding the foregoing or anything to the contrary herein, unless otherwise agreed in writing by the Company, in no event shall there be less than two (2) Tailwind Designees that would qualify as “independent directors” under the listing rules of NYSE immediately after the Effective Time.
(f) Prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company shall designate each director that will serve on the compensation committee, the audit committee and the nominating committee of the Tailwind Board immediately after the Effective Time, subject to applicable listing rules of NYSE and applicable Federal Securities Laws.
(g) The individuals identified on Section 5.16(g) of the Company Disclosure Schedules shall be Officers immediately after the Effective Time, with each such individual holding the title set forth opposite his or her name. In the event that any such individual identified on Section 5.16(g) of the Company Disclosure Schedules is unwilling or unable (whether due to death, disability or otherwise) to serve as an Officer, then, prior to the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Company may, with the prior written consent of Tailwind Sponsor (such consent not to be unreasonably withheld, conditioned or delayed), replace such individual with another individual to serve as such Officer and, if the Tailwind Sponsor provides its consent to the replacement of such Officer, then Section 5.16(g) of the Company Disclosure Schedules shall automatically be deemed amended to include such replacement individual as an Officer in lieu of, and to serve with the same title as, the individual so replaced.
Section 5.17 Required Financials.
(a) The Company (i) shall deliver to Tailwind (A) as promptly as reasonably practicable following the date of this Agreement, the Initial Required Financial Statements, and (B) as promptly as practicable following the relevant financial statement or other applicable period, any other Required Closing Financial Statements and (ii) has delivered, as of the date hereof, the 2019 Audited Financial Statements (which are, for the avoidance of doubt, attached as to Section 3.4(a) of the Company Disclosure Schedules).
(b) The Company Closing Financial Statements will comply with the standards set forth in Section 3.4(b). With respect to the Company Closing Financial Statements (in the case of clause (i)), the Sentar Closing Financial Statements (in the case of clause (ii)) and the RPC Tyche Closing Financial Statements (in the case of clause (iii)):
(i) The Company Closing Financial Statements (A) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) will fairly present, in all material respects, the financial position, results of operations, stockholders’ equity and cash flows of the Group Companies as at the dates thereof and for the periods indicated therein (subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material)), (C) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors and (D) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable);
(ii) The Sentar Closing Financial Statements (A) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) will fairly present in all material respects the financial position, results of operation, stockholders’ equity and cash flows of Sentar as at the dates thereof and for the periods indicated therein subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and (C) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable); and
(iii) The RPC Tyche Closing Financial Statements (A) will be prepared in accordance with United Kingdom generally accepted accounting principles (with a reconciliation to GAAP) applied on a consistent basis throughout the periods indicated (except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) will fairly present in all material respects the financial position, results of operation, stockholders’ equity and cash flows of RPC Tyche as at the dates thereof and for the periods indicated therein (subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material)) and (C) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates of delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) The Company shall use its reasonable best efforts (i) to assist, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Group Companies, Tailwind in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement / Proxy Statement and any other filings to be made by Tailwind with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document and (ii) to obtain the consents of its auditors with respect thereto as may be required by applicable Law or requested by the SEC.
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Section 5.18 Tailwind Incentive Equity Plan. At least one day prior to the Closing Date, the Tailwind Board shall approve and adopt an equity incentive plan, with such terms and conditions set forth on Exhibit I and with any changes or modifications thereto as the Company and Tailwind may mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or Tailwind, as applicable) (the “Tailwind Incentive Equity Plan”), in the manner prescribed under applicable Laws, effective as of one day prior to the Closing Date, reserving a number of Tailwind Shares for grant thereunder equal to (x) ten percent (10%) of the Tailwind Shares outstanding as of immediately following the Effective Time (including, for the avoidance of doubt, the Tailwind Shares reserved for issuance pursuant to this sentence) plus (y) the number of Rollover Options issued in respect of the Vested Company Options. Subject to, and conditioned upon the occurrence of, the Effective Time, (a) Tailwind shall, effective as of immediately following the Effective Time (in the case of any options to purchase Tailwind Shares) or promptly following the effectiveness of the registration statement on Form S-8 to be filed by Tailwind following the Effective Time with respect to the Tailwind Shares issuable under the Tailwind Incentive Equity Plan (in the case of any other incentive equity awards), grant to the officer of the Group Companies set forth on Section 5.18(a) of the Company Disclosure Schedules the amount of incentive equity awards set forth opposite his or her name, with such incentive equity awards having such terms and conditions agreed to by the Company and Tailwind prior to the Effective Time (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or Tailwind), and (b) Tailwind shall, effective as of immediately following the Effective Time (in the case of any options to purchase Tailwind Shares) or promptly following the effectiveness of the registration statement on Form S-8 to be filed by Tailwind following the Effective Time with respect to the Tailwind Shares issuable under the Tailwind Incentive Equity Plan (in the case of any other incentive equity awards), grant to each officer or employee of the Group Companies determined by the Company, after reasonably consulting with Tailwind at least five (5) Business Days prior to the Closing, the amount and type of incentive equity awards so designated in writing by the Company, with such incentive equity awards having such terms and conditions agreed to by the Company and Tailwind at least five (5) Business Days prior to the Effective Time (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or Tailwind); provided, however, that (i) each Party acknowledges and agrees that it is not a condition to the Closing or to any Party’s performance of any of its other covenants, agreements or obligations under this Agreement or any Ancillary Document that the Company and Tailwind agree on the terms and conditions of the incentive equity awards pursuant to clause (b), (ii) the grant of incentive equity awards to any officer or employee pursuant to this sentence shall be conditioned upon such officer’s or employee’s continued employment with the Group Companies through the grant date, and (iii) in no event shall the aggregate number of Tailwind Shares subject to any grants pursuant to clause (a) and clause (b) of this sentence exceed 10,000,000 Tailwind Shares.
Section 5.19 FIRPTA Certificates. At or prior to the Closing, the Company shall deliver, or cause to be delivered, to Tailwind a certificate, duly executed by the Company, complying with Treasury Regulations Section 1.1445-2(c)(3), together with evidence that the Company has provided notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), in each case, in a form and substance reasonably acceptable to Tailwind.
Section 5.20 Company Related Party Transactions. The Company shall take, or cause to be taken, all actions necessary or advisable to terminate at or prior to the Closing all Company Related Party Transactions (other than those set forth on Section 5.20 of the Company Disclosure Schedules) without any further obligations or Liabilities to the Company or any of its Affiliates (including the other Group Companies and, from and after the Effective Time, Tailwind and its Affiliates).
Section 5.21 Pipeline Acquisitions.
(a) The Company shall, and shall cause the other Group Companies to, (i) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective each Pipeline Acquisition substantially concurrently with the Closing in accordance with the terms of the Sentar Purchase Agreement (in the case of the Sentar Acquisition) or the RPC Tyche Purchase Agreement (in the case of the RPC Tyche Acquisition), as applicable, and the terms of this Section 5.21 (in the case of each Pipeline Purchase Agreement), including (A) satisfying on a timely basis all conditions or contingencies set forth in each Pipeline Purchase Agreement and (B) in connection with the Sentar Acquisition, negotiating, agreeing to and accepting all reasonable foreign ownership control or influence agreements, arrangements, commitments and plans (including all required implementation plans and commitment letters), with the DCSA and executing and delivering, or causing to be executed and delivered, all reasonably required documents, agreements and instruments in connection therewith (including any Company Board resolutions) and providing, or cause to be provided, all information and executing and delivering, or causing to be executed and delivered, all other reasonably required documents, agreements or instruments, in each case, reasonably required or requested by the DCSA in connection with this Agreement, the Sentar Purchase Agreement and the transactions contemplated hereby and thereby (provided, that, in addition to the covenants, agreements and obligations of the Company and its Representatives set forth in Section 5.21(b), neither the Company nor its Representatives shall agree to, accept, implement or execute any such arrangement, commitment, agreement, plan, document or instrument contemplated by this clause (B) without the prior written consent of Tailwind (such consent not to be unreasonably withheld, conditioned or delayed)), (ii) maintain in effect each of the Pipeline Purchase Agreements, (iii) comply with and enforce, as applicable, in all material respects the respective covenants, agreements, obligations and rights of the Group Companies and each other party thereto set forth in Sentar Purchase Agreement (in the case of the Sentar Acquisition) or the RPC Tyche Purchase Agreement (in the case of the RPC Tyche Acquisition), as applicable (including, for the avoidance of doubt, and each of its rights to enforce any covenants, agreements or obligations of any other party(ies) to the Sentar Purchase Agreement or the RPC Tyche Purchase Agreement, as applicable) and (iv) take, or cause to be taken, the actions set forth on Section 5.21(a) of the Company Disclosure Schedules. The Company shall not, and shall cause the other Group Companies not to, (A) assign or delegate any of its rights under, amend or modify any of the terms or conditions of or waive any of the covenants, agreements, obligations, representations or warranties of any other party under the Sentar Purchase Agreement or the RPC Tyche Purchase Agreement, as applicable (including, for the avoidance of doubt, any conditions or contingencies set forth in either Pipeline Purchase Agreement), in each case, without the prior written consent of Tailwind (such consent not to be unreasonably withheld, conditioned or delayed), or (B) terminate either Pipeline Purchase Agreement without the prior written consent of Tailwind.
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(b) The Company shall keep Tailwind reasonably informed with respect to the status of each of the Pipeline Acquisitions and shall promptly (and in any event within two (2) Business Days thereof) provide written notice to Tailwind of (i) any material development, event or circumstance relating to either Pipeline Acquisition, including any development, event or circumstance that could (individually or together with any other development(s), event(s) or circumstance(s)) reasonably be expected to prevent or materially delay (or has so prevented or materially delayed) the consummation of such Pipeline Acquisition or the transactions contemplated by this Agreement, (ii) upon having knowledge of any material violation, breach or default (or any development, event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material violation, breach or default) by any party to the Sentar Purchase Agreement (in the case of the Sentar Acquisition) or the RPC Tyche Purchase Agreement (in the case of the RPC Tyche Acquisition), and (iii) the receipt of any notice or other communication from any Person with respect to any material dispute or disagreement between or among any parties to the Sentar Purchase Agreement (in the case of the Sentar Acquisition) or the RPC Tyche Purchase Agreement (in the case of the RPC Tyche Acquisition) or any Consent required (or purported to be required) in connection with either Pipeline Purchase Agreement or the transactions contemplated thereby. The Company will, prior to the execution and delivery thereof, provide Tailwind with final forms of each Pipeline Purchase Agreement to be entered into after the date hereof, which will (A) in the case of each such Pipeline Purchase Agreement (other any customary closing certificates or instruments to be delivered in connection with closing thereof), be in substantially the final form made available to Tailwind prior to the date hereof and with such other changes as are agreed to in writing by Tailwind and (B) in the case of any customary closing certificates or instruments to be delivered in connection with the closing thereof, in a form and substance reasonably acceptable to Tailwind. Without limiting the generality of the foregoing, the Company shall promptly inform Tailwind of any communication between any Group Company, any other Person party to any Pipeline Acquisition Agreement or any of their respective Representatives, on the one hand, and any Governmental Entity, on the other hand, relating to the transactions contemplated by either Pipeline Purchase Agreement. The Company shall provide, or cause to be provided, Tailwind and its Representatives a reasonable opportunity to review in advance, and shall consider in good faith the views of Tailwind and its Representatives in connection with, any proposed written communication to any Governmental Entity (including, for the avoidance of doubt, any Consent) relating to the transactions contemplated by either Pipeline Purchase Agreement and each such proposed communication shall be in a form reasonably satisfactory to Tailwind prior to the making, delivery, filing or submission, as applicable, thereof. The Company agrees not to, and shall cause the other Group Companies and its and their respective Representatives not to and shall use reasonable best efforts to cause any other Persons party to any Pipeline Acquisition Agreement and their Representatives not to, participate any substantive meeting or discussion, either in person or by telephone with any Governmental Entity in connection with the transactions contemplated by either Pipeline Purchase Agreement unless any such Person consults with Tailwind and its Representatives in advance and, to the extent not prohibited by such Governmental Entity, gives Tailwind and its Representatives the opportunity to attend and participate in such meeting or discussion.
(c) Upon the written request by the Company, Tailwind shall reasonably cooperate with the Company in connection with the consummation of each Pipeline Acquisition on the terms and subject to the conditions set forth in the applicable Pipeline Purchase Agreement, including providing information within its possession or otherwise reasonably available regarding Tailwind, its Affiliates, and the stockholders of Tailwind, in each case as may be reasonably necessary for the Company to complete (i) any filings under the HSR Act expressly contemplated and required by either Pipeline Purchase Agreement or (ii) any submissions expressly contemplated and required by the Sentar Purchase Agreement to the DCSA in connection with this Agreement, the Sentar Purchase Agreement and the transactions contemplated hereby and thereby. Notwithstanding the foregoing or anything to the contrary herein, (A) in no event shall Tailwind be required to take any action or to do anything if such action that would require Tailwind, its Affiliates or any of their respective Representatives to incur any costs, expenses or other Liabilities that are not either paid or satisfied and discharged, as applicable, by the Company in full or reimbursed substantially concurrently by the Company in full in connection with the incurrence thereof and (B) none of the Tailwind Parties shall be required to provide, or cause to be provided, any information that it would not otherwise be required to provide under Section 5.3(c) as a result of the last sentence thereof, which sentence shall apply to this Section 5.21(c), mutatis mutandis.
Section 5.22 Tailwind Governing Documents. Subject the Required Tailwind Stockholder Approval being obtained, prior to the Effective Time, Tailwind shall (a) cause the amended and restated certificate of incorporation of Tailwind, substantially in the form attached hereto as Exhibit G (the “Post-Closing Tailwind Certificate of Incorporation”), to be filed with the Secretary of State of Delaware, and (b) adopt the amended and restated bylaws, substantially in the form attached hereto as Exhibit H (the “Post-Closing Tailwind Bylaws”).
Section 5.23 Lock-Up. Each Company Stockholder, upon delivery of a duly executed Letter of Transmittal as provided in Section 2.5, shall be deemed to acknowledge and agree that the Tailwind Shares issued to such Company Stockholder in connection with the Merger shall be subject to the lock-up agreements, covenants and obligations set forth in Section 7.9 of the Post-Closing Tailwind Bylaws.
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Section 5.24 Joinder to Investor Rights Agreement. As promptly as practicable following the execution and delivery of this Agreement, the Company shall provide each Company Stockholder that is not a Supporting Company Stockholder with a reasonable opportunity to become party to, and bound by, the Investor Rights Agreement by executing and delivering a joinder agreement thereto (in form and substance reasonably satisfactory to Tailwind); provided, however, that each Party acknowledges and agrees that it is not a condition to the Closing or to any Party’s performance of any of its other covenants, agreements or obligations under this Agreement or any Ancillary Document that any such Company Stockholder enter into any such joinder agreement, and this Section 5.24 shall not affect, modify or otherwise limit any of the other covenants, agreements or obligations of any Party under this Agreement or any Ancillary Document.
Section 5.25 Company Name Change. At least two (2) Business Days prior to the Closing Date, the Company will change its name to “QOMPLX Operations, Inc.”
Section 5.26 PIPE Subscription Agreements. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, (a) Tailwind shall use reasonable best efforts to comply with its obligations, and enforce its rights, under the PIPE Subscription Agreements on the terms and subject to the conditions set forth in this Agreement and the PIPE Subscription Agreements and (b) the Company may cause Tailwind to enforce its right under each PIPE Subscription Agreement on the terms and subject to the conditions set forth in this Agreement and each PIPE Subscription Agreement; provided, however, that (i) Tailwind shall be deemed to have satisfied its obligations under this sentence if the PIPE Financing contemplated by any underlying PIPE Subscription Agreement has been funded or will be funded substantially concurrently with the occurrence of the Closing and (ii) for the avoidance of doubt, any breach, or failure to perform or comply with, any provision of a PIPE Subscription Agreement by a PIPE Investor shall not, in and of itself, be deemed to be a breach of, or failure to perform or comply with, this sentence. Tailwind shall, after having knowledge thereof, give the Company prompt notice of any material breach by any party to any of the PIPE Subscription Agreements and of any termination (or the receipt of any written notice of any alleged or purported termination) of any of the PIPE Subscription Agreements. Tailwind shall not agree to any amendment or modification to, or any waiver of any material provision that requires its agreement under, any of the PIPE Subscription Agreements if such amendment, modification or waiver (A) would reasonably be expected, as the time of such amendment, modification or waiver, to materially delay the occurrence of the Closing, (B) reduces the aggregate amount of the PIPE Financing in any material respect, (C) adds or imposes new material conditions to, or amends in any material respect the existing conditions in a manner that would be reasonably expected to, at the time of such amendment, materially delay the consummation of the PIPE Financing or (D) is materially adverse to the interests of the Company.
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Article 6
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
Section 6.1 Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists of the following conditions:
(a) each applicable waiting period or Consent under the HSR Act shall have expired, been terminated or obtained (or deemed, by applicable Law, to have been obtained), as applicable;
(b) no Order or Law issued by any court of competent jurisdiction or other Governmental Entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement shall be in effect;
(c) the Registration Statement / Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement / Proxy Statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending;
(d) the Company Stockholder Written Consent shall have been obtained;
(e) the Required Tailwind Stockholder Approval shall have been obtained;
(f) Tailwind’s initial listing application with NYSE in connection with the transactions contemplated by this Agreement shall have been conditionally approved and, immediately following the Effective Time, Tailwind shall satisfy any applicable initial and continuing listing requirements of NYSE, and Tailwind shall not have received any notice of non-compliance therewith that has not been cured prior to, or would not be cured at or immediately following, the Effective Time, and the Tailwind Shares (including the Tailwind Shares to be issued hereunder) shall have been approved for listing on NYSE;
(g) after giving effect to the transactions contemplated hereby (including the PIPE Financing), Tailwind shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) immediately after the Effective Time; and
(h) the Aggregate Transaction Proceeds shall be equal to or greater than $200,000,000.
Section 6.2 Other Conditions to the Obligations of the Tailwind Parties. The obligations of the Tailwind Parties to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by Tailwind (on behalf of itself and the other Tailwind Parties) of the following further conditions:
(a) (i) the Company Fundamental Representations (other than the representations and warranties set forth in Section 3.2(a) and Section 3.8(a)) and the representations and warranties of the Company Stockholder Representative in set forth Section 8.19(e) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in Section 3.2(a) shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), (iii) the representations and warranties set forth in Section 3.8(a) shall be true and correct in all respects as of the date of this Agreement and the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date) and (iv) the representations and warranties of the of the Company set forth in Article 3 (other than the Company Fundamental Representations) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect;
(b) the Company and the Company Stockholder Representative shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company and the Company Stockholder Representative under this Agreement at or prior to the Closing;
(c) since the date of this Agreement, no Company Material Adverse Effect has occurred;
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(d) (i) the Pipeline Acquisitions shall have been consummated immediately prior to, or will be consummated substantially concurrently with, the Closing and (ii) the Aggregate Pipeline Acquisitions Cash Consideration does not exceed the Pipeline Acquisitions Cash Purchase Price Cap; provided, that, upon the mutual written agreement of Tailwind and the Company, clause (i) of this paragraph shall be deemed satisfied if all of the conditions to closing set forth in the Sentar Purchase Agreement (other than (A) those conditions that by their nature are to be satisfied at closing, but are capable of being satisfied at such time if such closing were to occur, and (B) any conditions that are not satisfied at such time as a result of any requirements or requests of the DCSA in connection with this Agreement, the Sentar Purchase Agreement or the transactions contemplated hereby or thereby (to the extent waivable and subject to Section 5.21));
(e) at or prior to the Closing, the Company shall have delivered, or caused to be delivered, to Tailwind a certificate duly executed by an authorized officer of the Company, dated as of the Closing Date, to the effect that the conditions specified in Section 6.2(a), Section 6.2(b) and Section 6.2(c) are satisfied, in a form and substance reasonably satisfactory to Tailwind; and
(f) all amounts outstanding under the Bridge Financing Agreement (including the Aggregate Bridge Financing Amount and the Aggregate Bridge Financing Interest Amount) shall have been discharged and satisfied in full substantially concurrently with the Closing, in each case, on the terms and subject to the conditions of the applicable Bridge Financing Agreement.
Section 6.3 Other Conditions to the Obligations of the Company. The obligations of the Company to consummate the transactions contemplated by this Agreement are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the following further conditions:
(a) (i) the Tailwind Fundamental Representations shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), and (ii) the representations and warranties of the Tailwind Parties (other than the Tailwind Fundamental Representations) contained in Article 4 of this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “material adverse effect” or any similar limitation set forth herein) in all respects as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Tailwind Material Adverse Effect;
(b) the Tailwind Parties shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by them under this Agreement at or prior to the Closing;
(c) as of immediately following the Effective Time, the Tailwind Board shall consist of the number of directors, and be comprised of the individuals and classes, determined pursuant to Section 5.16(a)(i) and Section 5.16(a)(ii); and
(d) at or prior to the Closing, Tailwind shall have delivered, or caused to be delivered, to the Company a certificate duly executed by an authorized officer of Tailwind, dated as of the Closing Date, to the effect that the conditions specified in Section 6.3(a) and Section 6.3(b) are satisfied, in a form and substance reasonably satisfactory to the Company.
Section 6.4 Frustration of Closing Conditions. Neither the Company nor the Company Stockholder Representative may rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was proximately caused by the Company’s or the Company Stockholder Representative’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 5.2, or a breach of this Agreement. None of the Tailwind Parties may rely on the failure of any condition set forth in this Article 6 to be satisfied if such failure was proximately caused by a Tailwind Party’s failure to use reasonable best efforts to cause the Closing to occur, as required by Section 5.2, or a breach of this Agreement.
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Article 7
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing:
(a) by mutual written consent of Tailwind and the Company;
(b) by Tailwind, if any of the representations or warranties set forth in Article 3 or Section 8.19(e) shall not be true and correct or if the Company or the Company Stockholder Representative has failed to perform any covenant or agreement on the part of the Company or the Company Stockholder Representative set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.2(a) or Section 6.2(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to the Company by Tailwind, and (ii) the Termination Date; provided, however, that none of the Tailwind Parties is then in breach of this Agreement so as to prevent the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) from being satisfied;
(c) by the Company, if any of the representations or warranties set forth in Article 4 shall not be true and correct or if any Tailwind Party has failed to perform any covenant or agreement on the part of such applicable Tailwind Party set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 6.3(a) or Section 6.3(b) could not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to Tailwind by the Company and (ii) the Termination Date; provided, however, that (A) neither the Company Stockholder Representative nor the Company is then in breach of this Agreement so as to prevent the condition to Closing set forth in Section 6.2(a) or Section 6.2(b) from being satisfied and (B) the Cannae PIPE Investor is not then in breach of the Cannae PIPE Subscription Agreement in a manner that has, as of such time, resulted in or would reasonably be expected to result in the condition to Closing set forth in Section 6.1(h) from being satisfied;
(d) by either Tailwind or the Company, if the transactions contemplated by this Agreement shall not have been consummated on or prior to August 31, 2021 (the “Termination Date”); provided, that (i) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to Tailwind if any Tailwind Party’s breach of any of its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to the Company if (A) the Company’s or the Company Stockholder Representative’s breach of its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date or (B) the Cannae Investor is then in breach of the Cannae PIPE Subscription Agreement in a manner that has, as of such time, resulted in or would reasonably be excepted to result in the condition set forth in Section 6.1(h) from being satisfied;
(e) by either Tailwind or the Company, if any Governmental Entity shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such Order or other action shall have become final and nonappealable;
(f) by either Tailwind or the Company if the Tailwind Stockholders Meeting has been held (including any adjournment or postponement thereof), has concluded, Tailwind’s stockholders have duly voted and the Required Tailwind Stockholder Approval was not obtained; or
(g) by Tailwind, if the Company does not deliver, or cause to be delivered to Tailwind, (i) a Transaction Support Agreement duly executed by each Supporting Company Stockholder in accordance with Section 5.13(a) on or prior to the Transaction Support Agreements Deadline or (ii) the Company Stockholder Written Consent in accordance with Section 5.13(b) on or prior to the Company Stockholder Written Consent Deadline.
Section 7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, (a) this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties and their respective Representatives) with the exception of Section 5.3(a), this Section 7.2, Article 8 (other than Section 8.1) and Article 1 (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties and (b) the Confidentiality Agreements, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with their respective terms. Notwithstanding the foregoing or anything to the contrary herein, the termination of this Agreement pursuant to Section 7.1 shall not affect any Liability on the part of any Party for any Willful Breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud.
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Article 8
MISCELLANEOUS
Section 8.1 Non-Survival. The representations, warranties, agreements and covenants in this Agreement shall terminate at the Effective Time, except for those covenants and agreements that, by their terms, contemplate performance after the Effective Time.
Section 8.2 Entire Agreement; Assignment. This Agreement (together with the Ancillary Documents) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of (a) Tailwind and the Company prior to Closing and (b) Tailwind, the Tailwind Sponsor and the Company Stockholder Representative after the Closing. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void.
Section 8.3 Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by (a) Tailwind and the Company prior to the Closing and (b) Tailwind, the Tailwind Sponsor and the Company Stockholder Representative after the Closing. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 8.3 shall be void, ab initio.
Section 8.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the e-mail was sent to the intended recipient thereof without an “error” or similar message that such e-mail was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:
(a) | If to any Tailwind Party, to: | |
c/o Tailwind Acquisition Corp. | ||
1545 Courtney Ave. | ||
Los Angeles, CA 90046 | ||
Attention: Matthew Eby | ||
E-mail: [Redacted] |
with a copy (which shall not constitute notice) to: | ||
Kirkland & Ellis LLP | ||
601 Lexington Avenue | ||
New York, NY 10022 |
Attention: | Jonathan L. Davis, P.C. | ||
Ryan Brissette | |||
E-mail: | jonathan.davis@kirkland.com | ||
ryan.brissette@kirkland.com |
If to the Company Stockholder Representative or the Company, to: | ||
c/o QOMPLX, Inc. | ||
1775 Tysons Boulevard, Suite 800 | ||
McLean, VA 22102 |
Attention: | Jason Crabtree | ||
E-mail: | [Redacted] |
with a copy (which shall not constitute notice) to: | ||
King & Spalding LLP | ||
1650 Tysons Boulevard, Suite 400 | ||
McLean, VA 22102 |
Attention: | Thomas J. Knox | ||
Daniel R. Kahan | |||
E-mail: | tknox@kslaw.com | ||
dkahan@kslaw.com |
or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
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Section 8.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
Section 8.6 Fees and Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses; provided, that, for the avoidance of doubt, (a) if this Agreement is terminated in accordance with its terms, the Company shall pay, or cause to be paid, all Unpaid Company Expenses and Tailwind shall pay, or cause to be paid, all Unpaid Tailwind Expenses and (b) if the Closing occurs, then Tailwind shall pay, or cause to be paid, all Unpaid Company Expenses and all Unpaid Tailwind Expenses.
Section 8.7 Construction; Interpretation. The term “this Agreement” means this Business Combination Agreement together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “day” means calendar day unless Business Day is expressly specified; (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement; (k) the words “provided” or “made available” or words of similar import (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to Tailwind, any documents or other materials posted to the electronic data room located at app.box.com under the project name “Tailwind” as of 5:00 p.m., Eastern Time, at least one (1) Business Day prior to the date of this Agreement; (l) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; (m) all references to any Contract are to that Contract as amended or modified from time to time in accordance with the terms thereof (subject to any restrictions on amendments or modifications set forth in this Agreement); (n) any reference to the “Company” in this Agreement shall mean and refer to the “Surviving Company” from and after the Effective Time; and (o) all references to the “date hereof” mean the date of this Agreement. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.
Section 8.8 Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Company Disclosure Schedules or in the Tailwind Disclosure Schedules corresponding to any Section or subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the Tailwind Disclosure Schedules) shall be deemed to have been disclosed with respect to every other section and subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the Tailwind Disclosure Schedules), as applicable, where the relevance of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the section or subsections of Article 3 or Article 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature.
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Section 8.9 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.14, Section 5.15, the last sentence of this Section 8.9 and Section 8.13, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. The Tailwind Sponsor shall be an express third-party beneficiary of the last sentence of Section 2.6, Section 5.4, Section 5.16(e), Section 5.17, Section 8.2, Section 8.3, this Section 8.9 and Section 8.14. The Cannae PIPE Investor shall be an express third-party beneficiary of Section 5.16(d).
Section 8.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Section 8.11 Counterparts; Electronic Signatures. This Agreement and each Ancillary Document (including any of the closing deliverables contemplated hereby) may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Document (including any of the closing deliverables contemplated hereby) by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any such Ancillary Document.
Section 8.12 Knowledge of Company; Knowledge of Tailwind. For all purposes of this Agreement, the phrase “to the Company’s knowledge” and “known by the Company” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12(a) of the Company Disclosure Schedules, assuming reasonable due inquiry and investigation of his or her direct reports. For all purposes of this Agreement, the phrase “to Tailwind’s knowledge” and “to the knowledge of Tailwind” and any derivations thereof shall mean as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12(b) of the Tailwind Disclosure Schedules, assuming reasonable due inquiry and investigation of his or her direct reports. For the avoidance of doubt, none of the individuals set forth on Section 8.12(a) of the Company Disclosure Schedules or Section 8.12(b) of the Tailwind Disclosure Schedules shall have any personal Liability or obligations regarding such knowledge.
Section 8.13 No Recourse. This Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and without limiting the generality of the foregoing, none of the Representatives of Tailwind or the Company shall have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter or the transactions contemplated hereby or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, except as expressly provided herein or, for the avoidance of doubt, for claims pursuant to any Ancillary Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein.
Section 8.14 Extension; Waiver. The Company prior to the Closing and the Tailwind Sponsor after the Closing may (a) extend the time for the performance of any of the obligations or other acts of the Tailwind Parties set forth herein, (b) waive any inaccuracies in the representations and warranties of the Tailwind Parties set forth herein or (c) waive compliance by the Tailwind Parties with any of the agreements or conditions set forth herein. Tailwind (prior to the Closing Date) and the Tailwind Sponsor (after the Closing Date), may (i) extend the time for the performance of any of the obligations or other acts of the Company or the Company Stockholder Representative set forth herein, (ii) waive any inaccuracies in the representations and warranties of the Company or the Company Stockholder Representative set forth herein or (iii) waive compliance by the Company or the Company Stockholder Representative with any of the agreements or conditions set forth herein. Any agreement on the part of any such Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of such rights.
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Section 8.15 Waiver of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 8.15.
Section 8.16 Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, any state or federal court within State of New York, New York County), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or under any Ancillary Document or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i) arising under this Agreement or under any Ancillary Document or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement or any Ancillary Document or any of the transactions contemplated hereby or any of the transactions contemplated thereby, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 8.16 for any reason, (B) that such Party or such Party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 8.4 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.
Section 8.17 Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
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Section 8.18 Trust Account Waiver. Reference is made to the final prospectus of Tailwind, filed with the SEC (File No. 333-248113) on September 3, 2020 (the “Prospectus”). The Company acknowledges and agrees and understands that Tailwind has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of Tailwind’s public stockholders (including overallotment shares acquired by Tailwind’s underwriters, the “Public Stockholders”), and Tailwind may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of Tailwind entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Company Stockholder Representative each hereby agrees on behalf of itself and its Representatives that, notwithstanding the foregoing or anything to the contrary in this Agreement, none of the Company, the Company Stockholder Representative or any of their respective Representatives does now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any proposed or actual business relationship between Tailwind or any of its Representatives, on the one hand, and, the Company, the Company Stockholder Representative or any of their respective Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Trust Account Released Claims”). The Company and the Company Stockholder Representative each, on its own behalf and on behalf of its Representatives (including, for the avoidance of doubt, in the case of the Company, its future equityholders, including any equityholders of Sentar or RPC Tyche that would, if the transactions contemplated by the Sentar Purchase Agreement or the RPC Tyche Purchase Agreement, as applicable, become Company Stockholders), hereby irrevocably waives any Trust Account Released Claims that it or any of its Representatives (including, for the avoidance of doubt, in the case of the Company, its future equityholders, including any equityholders of Sentar or RPC Tyche that would, if the transactions contemplated by the Sentar Purchase Agreement or the RPC Tyche Purchase Agreement, as applicable, become Company Stockholders) may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, or Contracts with Tailwind or its Representatives and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with Tailwind or its Affiliates).
Section 8.19 Company Stockholder Representative.
(a) Rationem, LLC is hereby appointed, authorized and empowered to act as a representative for the benefit of the Company Stockholders, as the exclusive agent and attorney-in-fact to act on behalf of each Company Stockholder, in connection with and to facilitate the consummation of the transactions contemplated by this Agreement, including pursuant to any Ancillary Documents, which shall include the power and authority:
(i) to execute and deliver this Agreement and any Ancillary Documents (with such modifications or changes herein or therein as to which the Company Stockholder Representative, in its sole and absolute, discretion, shall have consented) and to agree to such amendments or modifications thereto or to this Agreement as the Company Stockholder Representative, in its sole discretion, may deem necessary or desirable;
(ii) to execute and deliver such amendments, modifications, waivers and consents in connection with this Agreement, any Ancillary Document or the consummation of the transactions contemplated hereby or thereby as the Company Stockholder Representative, in its sole discretion, may deem necessary or desirable;
(iii) to enforce and protect the rights and interests of the Company Stockholders and to enforce and protect the rights and interests of the Company Stockholder Representative arising out of or under or in any manner relating to this Agreement, any Ancillary Document or the transactions contemplated hereby or thereby, and to take any and all actions which the Company Stockholder Representative believes are necessary or appropriate under this Agreement and/or any Ancillary Document for and on behalf of Company Stockholders (but, in each case, subject to the terms and conditions hereunder and thereunder);
(iv) to refrain from enforcing any right of any Company Stockholder or the Company Stockholder Representative arising out of or under or in any manner relating to this Agreement or any Ancillary Document or any of the transactions contemplated hereby or thereby; provided, however, that no such failure to act on the part of the Company Stockholder Representative, except as otherwise provided in this Agreement or in any Ancillary Document, shall be deemed a waiver of any such right or interest by any such Company Stockholder or Company Stockholder Representative unless such waiver is in writing signed by the waiving party or by the Company Stockholder Representative, as applicable; and
(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Company Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement and all Ancillary Documents on behalf of the Company Stockholders (but, in each, case subject to the terms and conditions hereunder and thereunder).
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(b) Each of the other Parties shall be entitled to rely conclusively, without inquiry, on any document executed or purported to be executed on behalf of any Company Stockholder by the Company Stockholder Representative, and on any other decision, action, omission, consent or instruction taken or purported to be taken on behalf of any Company Stockholder by the Company Stockholder Representative, as fully binding on such Company Stockholder, and each of the other Parties are hereby relieved from any liability to any Person in accordance with the foregoing, all of which shall be legally binding upon the Company Stockholders, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Notice given to the Company Stockholder Representative in accordance with the provisions of this Agreement shall constitute notice to the Company Stockholders for all purposes under this Agreement or, except as otherwise expressly provided therein, any Ancillary Document.
(c) The grant of authority provided for herein (A) is coupled with an interest and shall be irrevocable and survive the death, incompetency, bankruptcy or liquidation of any Company Stockholder, and (B) shall survive the consummation of transactions contemplated by this Agreement. All decisions and actions by the Company Stockholder Representative made in accordance with the authority granted to it hereunder, shall be binding upon all of the Company Stockholder, and no Company Stockholder shall have the right to object, dissent, protest or otherwise contest the same. Notwithstanding the foregoing, the Company Stockholder Representative may resign as the Company Stockholder Representative at any time by providing written notice to Tailwind, which resignation shall become effective upon appointment of a successor Company Stockholder Representative by the Company Stockholders constituting a majority of the voting power of the Company Shares immediately prior to Effective Time. All power, authority, rights, privileges and obligations conferred in this Agreement to the Company Stockholder Representative shall apply to any successor Company Stockholder Representative.
(d) By virtue of the adoption of this Agreement and the approval of this Agreement, the Ancillary Documents to which the Company is or will be a party, and the transactions contemplated hereby and thereby, by the Company Stockholders, each Company Stockholder (regardless of whether or not such Company Stockholder votes in favor of the adoption of this Agreement and the approval of this Agreement, Ancillary Documents and the transactions contemplated hereby and thereby, whether at a meeting or by written consent in lieu thereof) shall be deemed to have (i) released the Company Stockholder Representative from, and agreed to indemnify the Stockholder Representative against, liability for any action taken or not taken by the Company Stockholder Representative in its capacity as such Company Stockholder Representative, except for the liability of the Company Stockholder Representative to a Company Stockholder for loss which such Company Stockholder may suffer from fraud committed by the Company Stockholder Representative in carrying out its duties hereunder, and (ii) appointed, as of such approval, the Company Stockholder Representative as such Company Stockholder’s exclusive agent and attorney-in-fact to enter into any agreement in connection with the Agreement, Ancillary Documents and transactions contemplated hereby and thereby, to exercise all or any of the powers, authority and discretion conferred on such Company Stockholder under any such agreement, to give and receive notices on such Company Stockholder’s behalf and to be such Company Stockholder’s exclusive representative with respect to any matter, suit, claim, action or other Proceeding arising with respect to any transaction contemplated by such agreement, including, without limitation, the defense, settlement or compromise of any claim, action or other Proceeding thereunder.
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(e) The Company Stockholder Representative hereby represents and warrants to the Tailwind Parties, in each case, as of the date of this Agreement and as of the Closing, as follows:
(i) The Company Stockholder Representative is a Delaware limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware;
(ii) The Company Stockholder Representative has the requisite limited liability company power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the Ancillary Documents to which the Company Stockholder Representative is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary limited liability company action on the part of the Company Stockholder Representative. This Agreement and each Ancillary Document to which the Company Stockholder Representative is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by the Company Stockholder Representative and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company Stockholder Representative (assuming that this Agreement and the Ancillary Documents to which the Company Stockholder Representative is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party thereto), enforceable against the Company Stockholder Representative in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity);
(iii) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company Stockholder Representative with respect to the Company Stockholder Representative’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company Stockholder Representative is or will be party or the consummation of the transactions contemplated hereby or thereby; and
(iv) None of the execution or delivery by the Company Stockholder Representative of this Agreement or any Ancillary Documents to which it is or will be a party, the performance by the Company Stockholder Representative of its obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (A) result in a violation or breach of any provision of the Company Stockholder Representative’s Governing Documents, (B) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (x) any Contract to which the Company Stockholder Representative is a party or (y) any material Permits of the Company Stockholder Representative, or (C) violate, or constitute a breach under, any Order or applicable Law to which the Company Stockholder Representative or any of its properties or assets are subject or bound, except, in the case of any of clauses (ii) and (iii) above, as would not reasonably be expected to adversely affect the ability of the Company Stockholder Representative to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement or the Ancillary Documents in any material respect.
(v) There is no Proceeding pending or, to the Company Stockholder Representative’s knowledge, threatened against or involving the Company Stockholder Representative or any of its Affiliates that, if adversely decided or resolved, would reasonably be expected to adversely affect the ability of the Company Stockholder Representative to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement or the Ancillary Documents in any material respect.
(vi) The Company Stockholder Representative, solely in its capacity as the Company Stockholder Representative, acknowledges, represents, warrants and agrees that (A) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the Tailwind Parties and (B) it has been furnished with or given access to such documents and information about the Tailwind Parties and their respective businesses and operations as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.
(vii) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, the Company Stockholder Representative, solely in its capacity as the Company Stockholder Representative, has relied solely on its own investigation and analysis and no other representations or warranties of any Tailwind Party or any other Person, either express or implied, and the Company Stockholder Representative, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, none of the Tailwind Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.
* * * * *
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IN WITNESS WHEREOF, each of the Parties has caused this Business Combination Agreement to be duly executed on its behalf as of the day and year first above written.
TAILWIND ACQUISITION CORP. |
By: | /s/ Chris Hollod |
Name: Chris Hollod | |
Title: Chief Executive Officer |
[Signature Page to Business Combination Agreement]
COMPASS MERGER SUB, INC. |
By: | /s/ Philip Krim |
Name: Philip Krim | |
Title: President |
[Signature Page to Business Combination Agreement]
QOMPLX, INC. |
By: | /s/ Jason Crabtree |
Name: Jason Crabtree | |
Title: Chief Executive Officer |
[Signature Page to Business Combination Agreement]
RATIONEM, LLC |
By: | /s/ Jason Crabtree |
Name: Jason Crabtree | |
Title: Chief Executive Officer |
[Signature Page to Business Combination Agreement]
Annex A-1
Other PIPE Investors
Annex A-2
Bridge Investors
Annex B
Supporting Company Stockholders
Exhibit A-1
FORM OF CANNAE PIPE SUBSCRIPTION AGREEMENT
(see attached)
Exhibit A-1 to the Business Combination Agreement
Exhibit A-2
FORM OF OTHER PIPE SUBSCRIPTION AGREEMENT
(see attached)
Exhibit A-2 to the Business Combination Agreement
2
Exhibit A-3
FORM OF BRIDGE FINANCING AGREEMENT
(see attached)
Exhibit A-3 to the Business Combination Agreement
3
Exhibit B
FORM OF INVESTOR RIGHTS AGREEMENT
(see attached)
Exhibit B to the Business Combination Agreement
4
Exhibit C
FORM OF TRANSACTION SUPPORT AGREEMENT
(see attached)
Exhibit C to the Business Combination Agreement
5
Exhibit D
FORM OF LETTER OF TRANSMITTAL
(see attached)
Exhibit D to the Business Combination Agreement
6
Exhibit E
RPC TYCHE PURCHASE AGREEMENT
(see attached)
Exhibit E to the Business Combination Agreement
7
Exhibit F
SENTAR PURCHASE AGREEMENT
(see attached)
Exhibit F to the Business Combination Agreement
8
Exhibit G
FORM OF POST-CLOSING TAILWIND CERTIFICATE OF INCORPORATION
(see attached)
Exhibit G to the Business Combination Agreement
9
Exhibit H
FORM OF POST-CLOSING TAILWIND BYLAWS
(see attached)
Exhibit H to the Business Combination Agreement
10
Exhibit I
FORM OF INCENTIVE EQUITY PLAN
(see attached)
Exhibit I to the Business Combination Agreement
11
Exhibit 10.1
Execution Version
SPONSOR LETTER AGREEMENT
This SPONSOR LETTER AGREEMENT (this “Agreement”), dated as of March 1, 2021, is made by and among Tailwind Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), QOMPLX, Inc., a Delaware corporation (the “Company”), solely for purposes of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing), Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), and solely for the purposes of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing), each of the undersigned individuals (such individuals are hereinafter jointly referred to as the “Insiders”, and together with the Sponsor, collectively, the “Sponsor Parties”). The Sponsor, Tailwind, the Insiders and the Company shall be referred to herein from time to time collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, Tailwind, the Company, Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Rationem, LLC, a Delaware limited liability company, in its capacity as representative of the Company Stockholders, entered into that certain Business Combination Agreement, dated as of the date hereof (as it may be amended, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”); and
WHEREAS, the Business Combination Agreement contemplates that the Parties will enter into this Agreement concurrently with the entry into the Business Combination Agreement by the parties thereto, pursuant to which, among other things, (a) the Sponsor will vote in favor of the Business Combination Agreement and the transactions contemplated thereby (including the Merger) at any meeting of the stockholders of Tailwind, (b) the Sponsor will waive any adjustment to the conversion ratio with respect to the Tailwind Class B Shares owned by the Sponsor set forth in the Governing Documents of Tailwind or any other anti-dilution or similar protection with respect to the Tailwind Class B Shares owned by the Sponsor (in each case, whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise), and (c) subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, the Sponsor will transfer, surrender and forfeit to Tailwind 835,539 Tailwind Class B Shares for no consideration.
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
1. Tailwind Class B Share Forfeiture. The Sponsor hereby agrees, that, subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, the Sponsor shall automatically be deemed to irrevocably transfer, surrender and forfeit to Tailwind 835,539 Tailwind Class B Shares for no consideration.
2. Agreement to Vote. From and after the date hereof until the earlier of the Effective Time or the termination of the Business Combination Agreement in accordance with its terms, the Sponsor hereby agrees to vote, or caused to be voted, all of the Tailwind Shares owned by the Sponsor in favor of the Business Combination Agreement and the transactions contemplated thereby (including the Merger) at any meeting of the stockholders of Tailwind duly called and convened in accordance with the Governing Documents of Tailwind, in each case, to the extent that the Sponsor is entitled to vote, or cause to be voted, such Tailwind Shares on each such Transaction Proposal.
3. Waiver of Anti-dilution Protection. The Sponsor hereby (a) waives, subject to, and conditioned upon and effective as of immediately prior to, the occurrence of the Effective Time, any rights to adjustment of the conversion ratio with respect to the Tailwind Class B Shares owned by the Sponsor set forth in the Governing Documents of Tailwind or any other anti-dilution or similar protection with respect to the Tailwind Class B Shares owned by the Sponsor (in each case, whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise) and (b) agrees not to assert or perfect any rights to adjustment of the conversion ratio with respect to the Tailwind Class B Shares owned by the Sponsor set forth in the Governing Documents of Tailwind or any other anti-dilution or similar protection with respect to the Tailwind Class B Shares owned by the Sponsor (in each case, whether resulting from the transactions contemplated by the PIPE Subscription Agreements or otherwise).
4. Termination of Lock-up Period. Each of the Sponsor, Tailwind and the Insiders hereby agrees that subject to, and conditioned upon the occurrence of, and effective as of, the Effective Time:
a. Section 5(a) of that certain Letter Agreement, dated as of September 3, 2020 (the “Letter Agreement”), by and among the Sponsor, Tailwind and the Insiders, shall be automatically amended and restated in its entirety as follows:
“5. (a) Reserved.”;
b. Paragraph (c) of Section 5 of the Letter Agreement shall be automatically amended to remove all references to paragraph (a) of Section 5 of the Letter Agreement and all references to the Founder Shares; and
c. Paragraph 9 of the Letter Agreement shall be automatically amended and restated in its entirety as follows:
“This Letter Agreement shall terminate on the earlier of (i) the date that is 30 days after the completion of an initial Business Combination and (ii) the liquidation of the Company.”
5. Non-Survival; Termination. This Agreement shall automatically terminate, without any notice or other action by any Party, and be void ab initio upon the termination of the Business Combination Agreement in accordance with its terms, and the representations, warranties, agreements and covenants in this Agreement shall automatically terminate, without any notice or other action, upon the occurrence of the Effective Time, except for those covenants and agreements in this Agreement that, by their terms, contemplate performance after the Effective Time. Upon termination of this Agreement or the representations, warranties, covenants and agreements in this Agreement, as applicable, as provided in the immediately preceding sentence, none of the Parties shall have any further obligations or Liabilities under, or with respect to, this Agreement, except, if the Effective Time occurs, obligations with respect to those covenants and agreements in this Agreement that, by their terms, contemplate performance after the Effective Time. Notwithstanding the foregoing or anything to the contrary in this Agreement, this Section 5, Section 6, Section 7 and Section 8 and Sections 9 to 20 (to the extent related to the foregoing) shall survive any termination of this Agreement and remain valid and binding obligations of the Parties.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Sponsor makes no agreement or understanding herein in any capacity other than in the Sponsor’s capacity as a record holder and/or beneficial owner of Tailwind Shares, (b) none of the Insiders makes any agreement or understanding herein in any capacity other than in such Insider’s capacity as a direct or indirect owner of equity interests in the Sponsor, and not, in the case of any Insider, in such Insider’s capacity as a director, officer or employee of any Tailwind Party or the Sponsor, and (c) nothing herein will be construed to limit or affect any action or inaction by any Insider or any Representative of the Sponsor serving as a member of the board of directors (or other similar governing body) of any Tailwind Party or the Sponsor or as an officer, employee or fiduciary of any Tailwind Party or the Sponsor, in each case, acting in such person’s capacity as a director, officer, employee or fiduciary of such Tailwind Party or the Sponsor.
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7. No Recourse. This Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and without limiting the generality of the foregoing, none of the Representatives of any Party shall have any Liability arising out of or relating to this Agreement, the negotiation hereof or its subject matter or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, except as expressly provided herein or, for the avoidance of doubt, for claims pursuant to the Business Combination Agreement or any Ancillary Documents by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein. Notwithstanding anything to the contrary in this Agreement, (a) in no event shall any Sponsor Party have any obligations or Liabilities related to or arising out of the covenants, agreements or obligations of any other Sponsor Party under this Agreement (including related to or arising out of the breach of any such covenant, agreement or obligation by any other Sponsor Party) and (b) in no event shall Tailwind have any obligations or Liabilities related to or arising out of the covenants, agreements or obligations of any Sponsor Party under this Agreement (including related to or arising out of any breach of any such covenant, agreement or obligation by any such Sponsor Party).
8. No Ownership Interest. Nothing contained in this Agreement will be deemed to vest in the Company any direct or indirect ownership or incidents of ownership of or with respect to the Tailwind Shares owned by the Sponsor. All rights, ownership and economic benefits of and relating to the Tailwind Shares owned by the Sponsor shall remain vested in and belong to the Sponsor, and except as otherwise expressly provided in Section 2, (a) the Company shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of Tailwind or exercise any power or authority to direct the Sponsor in the voting of any of the Tailwind Shares owned by the Sponsor and (b) the Sponsor shall not be restricted from voting in favor of, against or abstaining with respect to or giving (or withholding) its written consent to any other matters presented to the stockholders of Tailwind.
9. Entire Agreement; Assignment. This Agreement, together with the Business Combination Agreement and the Ancillary Documents, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of the other Parties. Any attempted assignment of this Agreement not in accordance with the terms of this Section 9 shall be void.
10. Amendment. This Agreement may be amended or modified only by a written agreement executed and delivered by each of the Parties. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 10 shall be void, ab initio.
11. Waiver. Any provision of this Agreement may be waived if, and only if, such waiver is in writing and signed by the Party against whom such waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
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13. Construction; Interpretation. The term “this Agreement” means this Sponsor Letter Agreement, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement; (b) masculine gender shall also include the feminine and neutral genders, and vice versa; (c) words importing the singular shall also include the plural, and vice versa; (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (e) references to “$” or “dollar” or “US$” shall be references to United States dollars; (f) the word “or” is disjunctive but not necessarily exclusive; (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form; (h) the word “day” means calendar day unless Business Day is expressly specified; (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (j) all references to Sections are to Sections of this Agreement; (k) all references to any Law will be to such Law as amended, supplemented or otherwise modified or re-enacted from time to time; and (l) all references to the “date hereof” mean the date of this Agreement. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.
14. Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
15. Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
16. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement.
4
17. Waiver of Jury Trial. THE PARTIES EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. THE PARTIES EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH PROCEEDING, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 17.
18. Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction, any state or federal court within State of New York, New York County), for the purposes of any Proceeding, claim, demand, action or cause of action (a) arising under this Agreement or (b) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement, and irrevocably and unconditionally waives any objection to the laying of venue of any such Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding claim, demand, action or cause of action against such Party (i) arising under this Agreement, or (ii) in any way connected with or related or incidental to the dealings of the Parties in respect of this Agreement, (A) any claim that such Party is not personally subject to the jurisdiction of the courts as described in this Section 18 for any reason, (B) that such Party or such Party’s property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Proceeding, claim, demand, action or cause of action in any such court is brought against such Party in an inconvenient forum, (y) the venue of such Proceeding, claim, demand, action or cause of action against such Party is improper or (z) this Agreement, or the subject matter hereof, may not be enforced against such Party in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such party’s respective address set forth in Section 19 shall be effective service of process for any such Proceeding, claim, demand, action or cause of action.
19. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:
If to Tailwind, the Sponsor or any of the Insiders, to:
c/o Tailwind Acquisition Corp.
51545 Courtney Ave.
Los Angeles, CA 90046
Attention: Matthew Eby
E-mail: [Redacted]
5
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Jonathan Davis, P.C.
Ryan Brissette
Email: jonathan.davis@kirkland.com
ryan.brissette@kirkland.com
If to the Company, to:
QOMPLX, Inc.
1775 Tysons Boulevard, Suite 800
McLean, VA 22102
Attention: Jason Crabtree
Email: [Redacted]
with a copy (which shall not constitute notice) to
King & Spalding LLP
1650 Tysons Boulevard, Suite 400
McLean, VA 22102
Attention: Thomas J. Knox
Daniel R. Kahan
Email: tknox@kslaw.com
dkahan@kslaw.com
or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
20. Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.
[signature page follows]
6
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
TAILWIND SPONSOR, LLC |
By: | /s/ Philip Krim |
Name: Philip Krim | |
Title: Manager |
QOMPLX, INC. |
By: | /s/ Jason Crabtree |
Name: Jason Crabtree | |
Title: Chief Executive Officer |
TAILWIND ACQUISITION
CORP.,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
By: | /s/ Chris Hollod |
Name: Chris Hollod | |
Title: Chief Executive Officer |
[Signature to Sponsor Letter Agreement]
PHILIP KRIM,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Philip Krim | |
Philip Krim |
[Signature to Sponsor Letter Agreement]
CHRIS HOLLOD,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Chris Hollod | |
Chris Hollod |
[Signature to Sponsor Letter Agreement]
MATT EBY,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Matt Eby | |
Matt Eby |
[Signature to Sponsor Letter Agreement]
ALAN SHERIFF,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Alan Sheriff | |
Alan Sheriff |
[Signature to Sponsor Letter Agreement]
WISDOM LU,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Wisdom Lu | |
Wisdom Lu |
[Signature to Sponsor Letter Agreement]
NEHA PARIKH,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing) |
/s/ Neha Parikh | |
Neha Parikh |
[Signature to Sponsor Letter Agreement]
WILL QUIST,
solely for the purpose of Section 1 and Section 4 to 8 and Sections 9 to 20 (solely to the extent related to the foregoing)s |
/s/ Will Quist | |
Will Quist |
[Signature to Sponsor Letter Agreement]
Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (this “Agreement”), dated as of March 1, 2021, is entered into by and among Tailwind Acquisition Corp., a Delaware corporation (the “Company”), Tailwind Sponsor LLC, a Delaware limited liability company (“Tailwind Sponsor”), the QOMPLX Stockholders (defined below), and each other Person who after the date hereof acquires Common Stock of the Company and becomes party to this Agreement by executing a Joinder Agreement (such Persons, collectively with the QOMPLX Stockholders, the “Stockholders”).
WHEREAS, pursuant to that certain Business Combination Agreement, dated as of March 1, 2021 (as the same may be further amended, modified or otherwise supplemented from time to time, the “BCA”), by and among the Company, QOMPLX, Inc., a Delaware corporation (“QOMPLX”), Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Rationem, LLC, in its capacity as the representative of the QOMPLX Stockholders as set forth herein (the “QOMPLX Stockholder Representative”), Merger Sub will merge with and into QOMPLX, with QOMPLX surviving such merger, and, after giving effect to such merger, QOMPLX will be a wholly-owned subsidiary of Tailwind;
WHEREAS, as of immediately prior to the consummation of the transactions contemplated by the BCA (the “Transactions”), the Company will have a total of 500,000,000 shares of Class A common stock authorized, 33,421,570 of which will be issued and outstanding, and a total of 50,000,000 shares of Class B common stock authorized, 8,355,393 of which will be issued, outstanding and held by Tailwind Sponsor (the “Tailwind Founder Shares”);
WHEREAS, concurrently with the consummation of the Transactions, the Class B common stock of the Company (including the Tailwind Founder Shares) will automatically convert into shares of Class A common stock of the Company on a one-for-one basis pursuant to the Amended and Restated Certificate of Incorporation of the Company, dated as of September 1, 2020;
WHEREAS, as part of the Transactions, the QOMPLX Stockholders will receive stock of Tailwind in a transaction that was intended to be treated as a tax-free reorganization under Section 368 of the Internal Revenue Code of 1986, as amended; and
WHEREAS, the parties hereto desire to enter into this Agreement to provide for certain rights and obligations associated with the ownership of shares of Common Stock.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
Article
I.
DEFINITIONS
Section 1.01 Definitions.
The following definitions shall apply to this Agreement:
“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith judgment of the board of directors of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose for not making such information public.
“Affiliate” with respect to any Person, has the meaning ascribed to such term under Rule 12b-2 promulgated by the SEC under the Exchange Act.
“Agreement” has the meaning set forth in the preamble.
“Applicable Law” means all applicable provisions of constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations or orders of any Governmental Authority.
“BCA” has the meaning set forth in the recitals.
“Block Trade” means any non-marketed underwritten offering taking the form of a block trade to a financial institution, “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or institutional “accredited” investor (as defined in Rule 501(a) of Regulation D under the Securities Act), bought deal, over-night deal or similar transaction that does not include “road show” presentations to potential investors requiring substantial marketing effort from management over multiple days, the issuance of a “comfort letter” by the Company’s auditors, or the issuance of a legal opinion by the Company’s legal counsel.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the City of New York are authorized or required by law to close.
“CEO” means Jason Crabtree, the chief executive officer of the Company, or any entities wholly-owned by him.
“Class A Common Stock” means the shares of class A common stock, with a par value of $.0001 per share, of the Company.
“Class B Common Stock” means the shares of class B common stock, with a par value of $.0001 per share, of the Company.
“Closing” means the closing of the Transactions.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Class A Common Stock, Class B Common Stock and any other shares of common stock of the Company issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or other similar event).
“Company” has the meaning set forth in the preamble.
“Company Equity Interest” means Common Stock or any other equity securities of the Company, or securities exchangeable or exercisable for, or convertible into, such other equity securities of the Company.
“control” (i) with respect to any Person, has the meaning ascribed to such term under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (ii) with respect to any Interest, means the possession, directly or indirectly, of the power to direct, whether by agreement, contract, agency or otherwise, the voting rights or disposition of such Interest.
“Demanding Holders” has the meaning set forth in Section 5.02(a).
“Demanding Registration Participants” has the meaning set forth in Section 5.02(b).
“Encumbrances” has the meaning set forth in the BCA.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Family Group” means, with respect to a Person who is an individual, (i) such individual’s spouse and descendants (whether natural or adopted), parents and such parent’s descendants (whether natural or adopted) (collectively, for purposes of this definition, “relatives”), (ii) such individual’s executor or personal representative, (iii) any trust, the trustee of which is such individual or such individual’s executor or personal representative and which at all times is and remains solely for the benefit of such individual and/or such individual’s relatives or (iv) an endowed trust or other charitable foundation, but only if such individual or such individual’s executor or personal representative maintains control over all voting and disposition decisions.
“Government Approval” means any authorization, consent, approval, waiver, exception, variance, order, exemption, publication, filing, declaration, concession, grant, franchise, agreement, permission, permit, or license of, from or with any Governmental Authority, the giving notice to, or registration with, any Governmental Authority or any other action in respect of any Governmental Authority.
“Governmental Authority” means any government, court, regulatory or administrative agency, commission or authority or other governmental instrumentality, federal, state or local, domestic, foreign or multinational, including any gaming authority and any contractor acting on behalf of such agency, commission, authority or governmental instrumentality.
“Interest” means the capital stock or other securities of the Company or any Affiliate of the Company or any other interest or financial or other stake therein, including, without limitation, the Company Equity Interests.
“Joinder Agreement” means the joinder agreement in form and substance of Exhibit A attached hereto.
“Lock-up Period” has the meaning set forth in Section 2.01(a).
“Maximum Number of Securities” has the meaning set forth in Section 5.02(c).
“Minimum Amount” has the amount set forth in Section 5.02(a).
“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of any Prospectus contained in such Registration Statement, in the light of the circumstances under which they were made) not misleading.
“own” or “ownership” (and derivatives of such terms) means (i) ownership of record and (ii) “beneficial ownership” as defined in Rule 13d-3 or Rule 16a-1(a)(2) promulgated by the SEC under the Exchange Act (but without regard to any requirement for a security or other interest to be registered under Section 12 of the Securities Act of 1933, as amended).
“Person” means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Piggyback Registration” has the meaning set forth in Section 5.03(a).
“Private Placement Warrants” means the 9,700,000 warrants purchased by Tailwind Sponsor pursuant to that certain Private Placement Warrants Purchase Agreement, dated as of September 3, 2020 by and among the Company and Tailwind Sponsor.
“Prospectus” means the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“QOMPLX Stockholder” means any Person who is a member of the QOMPLX Stockholder Group.
“QOMPLX Stockholder Group” means the Persons set forth on Schedule 1 hereto.
“QOMPLX Stockholder Group Representative” means Rationem, LLC.
“Registrable Securities” shall mean (i) any outstanding shares of Common Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any other equity security) of the Company held by a Stockholder as of the date hereof; (ii) the Private Placement Warrants, including the shares of Common Stock issued or issuable upon the exercise of any Private Placement Warrants; and (iii) any other equity security of the Company issued or issuable with respect to any such share of Common Stock by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; or (D) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” means a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Common Stock is then listed;
(B) fees and expenses of compliance with securities or blue sky laws;
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for the Company;
(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration (including the expenses of any “comfort letters” required by or incident to such performance); and
(F) reasonable fees and expenses of one (1) legal counsel selected by a majority in interest of the Demanding Holders in connection with an Underwritten Offering.
“Registration Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Representative” means, with respect to any Person, any director, officer, employee, consultant, financial advisor, counsel, accountant or other agent of such Person.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended.
“Stockholders” means the QOMPLX Stockholders and the Tailwind Sponsor (including any holder of the Tailwind Founder Shares as of immediately prior to the consummation of the Transactions).
“Subsidiary” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person.
“Third Party Purchaser” means any Person who, immediately prior to the contemplated transaction, does not directly or indirectly own or have the right to acquire any outstanding Common Stock.
“Transactions” has the meaning set forth in the recitals.
“Transaction Documents” means this Agreement, the BCA, the Ancillary Documents (as defined in the BCA) and any other agreements related to the Transactions.
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, Encumbrance, hypothecation or similar disposition of, any Interest owned by a Person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any Interest owned by a Person; provided, that each of (A) any pledge of Interests made in connection with a margin loan (provided that at the time of such pledge, the Stockholder is not in possession of material non-public information regarding the Company); and (B) any bona fide mortgage, encumbrance or pledge to a financial institution or other third party in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof, shall not constitute a “Transfer” for purposes of Section 2.01 of this Agreement.
“Underwriter” or “Underwriters” means a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Offering” means a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten Offering Cap” has the meaning set forth in Section 5.02(a).
Article
II.
RESTRICTIONS ON TRANSFER
Section 2.01 General Restrictions on Transfer.
(a) The Stockholders hereby agree and acknowledge that the shares of Common Stock held by the Stockholders immediately following the Closing (other than Common Stock acquired (i) in the public market, (ii) pursuant to a transaction exempt from registration under the Securities Act of 1933, as amended, pursuant to a subscription agreement where the issuance of Common Stock occurs on or after the Closing or (iii) pursuant to the Bridge Financing Agreement (as defined in the BCA) or the PIPE Financing (as defined in the BCA)) shall be subject to the lock-up provisions set forth in Section 7.9 of the Company’s Bylaws (the “Lock-up Period”).
(b) Following the expiration of the Lock-up Period, the shares of Common Stock beneficially owned or owned of record by such Stockholder may be sold without restriction under this Agreement, other than the restriction set forth in Section 2.03(c) below.
(c) Notwithstanding anything to the contrary herein or in the Company’s Bylaws, the Stockholders hereby agree that any waiver, amendment or repeal of the provisions of Section 7.9 of the Bylaws (i) shall not make such restrictions more restrictive or apply for a longer period of time and (ii) that is not expressly contemplated by Section 7.9(c) of the Company’s Bylaws shall require the unanimous approval of the directors of the Company.
Section 2.02 Permitted Transfers
(a) Transfer to Third Party Purchaser. The provisions of Section 2.01 shall not apply to any Transfer by any Stockholder pursuant to a merger, stock sale, consolidation or other business combination of the Company with a Third Party Purchaser that results in a change in control of the Company.
(b) Transfers for Estate Planning. Notwithstanding Section 2.01, any Stockholder who is a natural Person, so long as the applicable transferee executes a counterpart signature page to this Agreement agreeing to be bound by the terms of this Agreement applicable to such Stockholder, shall be permitted to make the following Transfers:
i. any Transfer of shares of Common Stock by such Stockholder to its Family Group without consideration (it being understood that any such Transfer shall be conditioned on the receipt of an undertaking by such transferee to Transfer such shares of Company Stock to the transferor if such transferee ceases to be a member of the transferor’s Family Group); provided, that no further Transfer by such member of such Stockholder’s Family Group may occur without compliance with the provisions of this Agreement or to a charitable organization; and
ii. upon the death of any Stockholder who is a natural Person, any distribution of any such shares of Common Stock owned by such Stockholder by the will or other instrument taking effect at death of such Stockholder or by applicable laws of descent and distribution to such Stockholder’s estate, executors, administrators and personal representatives, and then to such Stockholder’s heirs, legatees or distributees; provided, that a Transfer by such transferor pursuant to this Section 2.02(b)ii shall only be permitted if a Transfer to such transferee would have been permitted if the original Stockholder had been the transferor.
(c) Transfers to Affiliates. Notwithstanding Section 2.01, each Stockholder shall be permitted to Transfer from time to time any or all of the Common Stock owned by such Stockholder to (i) any of its wholly owned Affiliates, (ii) a person or entity wholly owning such Stockholder or (iii) in the case of Tailwind Sponsor, to its members.
(d) Transfers Pursuant to the Company’s Bylaws. Notwithstanding anything to the contrary contained herein, any Transfer that is permitted pursuant to Section 7.9(b) or any other provision of the Company’s Bylaws shall be permitted hereunder.
Section 2.03 Miscellaneous Provisions Relating to Transfers
(a) Legend. In addition to any legends required by Applicable Law, each certificate representing Common Stock shall bear a legend substantially in the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN INVESTOR RIGHTS AGREEMENT (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY). NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH INVESTOR RIGHTS AGREEMENT.”
(b) Prior Notice. Prior notice shall be given during the Lock-up Period to the Company by the transferor of any Transfer of any Common Stock permitted by Section 2.02(b) or Section 2.02(c). Prior to consummation of any such Transfer during the Lock-up Period or prior to any Transfer pursuant to which rights and obligations of the transferor under this Agreement are assigned in accordance with the terms of this Agreement, the transferring Stockholder shall cause the transferee to execute and deliver to the Company a Joinder Agreement and agree to be bound by the terms and conditions of this Agreement. Upon any Transfer by any Stockholder of any of its Common Stock, in accordance with the terms of this Agreement and which is made in conjunction with the assignment of such Stockholder’s rights and obligations hereunder, the transferee thereof shall be substituted for, and shall assume all the rights and obligations (as a Stockholder and as a member of the Stockholder Group of the transferor) under this Agreement, of the transferor thereof.
(c) Compliance with Laws. Notwithstanding any other provision of this Agreement, each Stockholder agrees that it will not, directly or indirectly, Transfer any of its Common Stock except as permitted under the Securities Act and other applicable federal or state securities laws.
(d) Null and Void. Any attempt to Transfer any Common Stock that is not in compliance with this Agreement shall be null and void, and the Company shall not, and shall cause any transfer agent not to, give any effect in the Company’s stock records to such attempted Transfer and the purported transferee in any such purported Transfer shall not be treated as the owner of such Common Stock for any purposes of this Agreement.
(e) Removal of Legends. In connection with the written request of a Stockholder, following the expiration of the Lock-up Period, the Company shall remove any restrictive legend included on the certificates (or, in the case of book-entry shares, any other instrument or record) representing such Stockholder’s and/or its Affiliates’ or permitted transferee’s ownership of Common Stock, and the Company shall issue a certificate (or evidence of the issuance of securities in book-entry form) without such restrictive legend or any other restrictive legend to the holder of the applicable shares of Common Stock upon which it is stamped, if (i) such shares of Common Stock are registered for resale under the Securities Act and the registration statement for such Company Equity Interests has not been suspended pursuant to Section 5.04 hereof or as otherwise required by the Securities Act, the Exchange Act or the rules and regulations of the SEC promulgated thereunder, (ii) such shares of Common Stock are sold or transferred pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (“Rule 144”) (but with no volume, current public information or other restrictions or limitations), or (iii) such shares of Common Stock are eligible for sale pursuant to Section 4(a)(1) of the Securities Act or Rule 144 without restrictions. Following the earlier of (A) the effective date of a Registration Statement registering such shares of Common Stock or (B) Rule 144 becoming available for the resale of such shares of Common Stock without restrictions, the Company, upon the written request of the Stockholder or its permitted transferee and the provision by such person of an opinion of reputable counsel reasonably satisfactory to the Company and the Company’s transfer agent solely to the extent required by the Company’s transfer agent, shall instruct the Company’s transfer agent to remove the legend from such shares of Common Stock (in whatever form) and shall cause Company counsel to issue any legend removal opinion required by the transfer agent. Any fees (with respect to the transfer agent, Company counsel, or otherwise) associated with the removal of such legend (except for any provision of the legal opinion by the Stockholder or its permitted transferee to the transfer agent referred to above) shall be borne by the Company. If a legend is no longer required pursuant to the foregoing, the Company will no later than five (5) Business Days following the delivery by any Stockholder or its permitted transferee to the Company or the transfer agent (with notice to the Company) of a legended certificate (if applicable) representing such shares of Common Stock and, to the extent required, a seller representation letter representing that such shares of Common Stock may be sold pursuant to Rule 144, and a legal opinion of reputable counsel reasonably satisfactory to the Company and the transfer agent solely to the extent required by the Company’s transfer agent, deliver or cause to be delivered to the holder of such Company Equity Interests a certificate representing such shares of Common Stock (or evidence of the issuance of such shares of Common Stock in book-entry form) that is free from all restrictive legends.
Article
III.
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Stockholders. Each Stockholder hereby, severally and not jointly, represents and warrants to the Company and each other Stockholder as of the date of this Agreement that:
(a) if such Stockholder is not a natural Person, such Stockholder is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of organization and has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) the execution and delivery of this Agreement, the performance of by such Stockholder of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate or other action of such Stockholder, and that such Stockholder has duly executed and delivered this Agreement;
(c) this Agreement constitutes the legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(d) the execution, delivery and performance of this Agreement by such Stockholder and the consummation of the transactions contemplated hereby, require no action by or in respect of, or filing with, any Governmental Authority, except as set out in the BCA or any Ancillary Document (as defined in the BCA);
(e) the execution, delivery and performance by such Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not (i) if such Stockholder is not a natural Person, conflict with or result in any violation or breach of any provision of any of the organizational documents of such Stockholder, (ii) conflict with or result in any violation or breach of any provision of any Applicable Law applicable to such Stockholder, or (iii) except as would not reasonably be expected to have a material adverse effect on the ability of the Stockholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder, require any consent or other action by any Person under any provision of any material agreement or other instrument to which the Stockholder is a party and which has not been obtained prior to or on the date of this Agreement;
(f) except for this Agreement, the BCA or any Ancillary Document (as defined in the BCA), such Stockholder has not entered into or agreed to be bound by any other agreements or arrangements of any kind with any other party with respect to any Company Equity Interests, including agreements or arrangements with respect to the acquisition or disposition of the Common Stock or any interest therein or the voting of the Common Stock (whether or not such agreements and arrangements are with the Company or any other Stockholder); and
(g) such Stockholder has not entered into, and agrees that it will not enter into, any agreement with respect to its securities that violates or subordinates or is otherwise inconsistent with the rights granted to the Stockholders under this Agreement.
Section 3.02 Representations and Warranties of the Company. The Company hereby represents and warrants to each Stockholder that as of the date of this Agreement:
(a) the Company is duly organized and validly existing and in good standing under the laws of the jurisdiction of organization and has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;
(b) the execution and delivery of this Agreement, the performance of by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate or other action of the Company, and the Company has duly executed and delivered this Agreement;
(c) this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(d) the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby, require no action by or in respect of, or filing with, any Governmental Authority, except as set out in the BCA or any Ancillary Document (as defined in the BCA);
(e) the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby do not (i) conflict with or result in any violation or breach of any provision of any of the organizational documents of the Company, (ii) conflict with or result in any violation or breach of any provision of any Applicable Law or (iii) require any consent or other action by any Person under any provision of any material agreement or other instrument to which the Company is a party;
(f) except for this Agreement, the BCA or any Ancillary Document (as defined in the BCA), the Company has not entered into or agreed to be bound by any other agreements or arrangements of any kind with any other party with respect to the Common Stock, including agreements or arrangements with respect to the acquisition or disposition of the Common Stock or any interest therein or the voting of the Common Stock (whether or not such agreements and arrangements are with any Stockholder); and
(g) the Company has not entered into, and agrees that it will not enter into, any agreement with respect to its securities that violates or subordinates or is otherwise inconsistent with the rights granted to the Stockholders under this Agreement.
Article
IV.
TERM AND TERMINATION
Section 4.01 Termination.
This Agreement shall terminate upon the earliest of:
(a) the date on which none of the Stockholders hold any Common Stock;
(b) the dissolution, liquidation, or winding up of the Company; or
(c) upon the unanimous written agreement of the Stockholders.
Section 4.02 Effect of Termination.
(a) The termination of this Agreement shall terminate all further rights and obligations of the Stockholders under this Agreement except that such termination shall not affect:
i. the existence of the Company;
ii. the obligation of any party to pay any amounts arising on or prior to the date of termination, or as a result of or in connection with such termination;
iii. the rights which any Stockholder may have by operation of law as a stockholder of the Company; or
iv. the rights contained herein which are intended to survive termination of this Agreement.
(b) The following provisions shall survive the termination of this Agreement: this Section 4.02, Section 5.05, Section 6.01, Section 6.02, Section 6.03, Section 6.04, Section 6.05, Section 6.09, Section 6.10, Section 6.11, Section 6.13, Section 6.14 and Section 6.15.
(c) Notwithstanding anything to the contrary in this Agreement, the covenants, agreements and obligations under the Agreement, other than those that expressly contemplate performance at or prior to the Closing, shall be subject to, and conditioned upon the occurrence of, and effective as of the Closing, and in the event that the BCA is terminated in accordance with its terms, then this Agreement, and all covenants, agreements and covenants herein, shall automatically terminate, without any notice or other action by any party hereto, and be void ab initio.
Article
V.
Registration Rights
Section 5.01 Registration Statement.
The Company shall, as soon as practicable after the Closing, but in any event within thirty (30) days following the date of this Agreement, file a Registration Statement under the Securities Act to permit the public resale of all the Registrable Securities held by the Stockholders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 5.01 and shall use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable after the filing thereof, but in any event no later than the earlier of (i) sixty (60) days (or ninety (90) days if the Commission notifies the Company that it will “review” the Registration Statement) after the date of this Agreement and (ii) the tenth (10th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant to this Section 5.01 shall be on Form S-1 or such other form of registration statement as is then available to effect a registration for resale of such Registrable Securities, covering such Registrable Securities, and shall contain a Prospectus in such form as to permit any Stockholder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement. A Registration Statement filed pursuant to this Section 5.01 shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Stockholders. The Company shall use its reasonable best efforts to cause a Registration Statement filed pursuant to this Section 5.01 to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another registration statement is available, for the resale of all the Registrable Securities held by the Stockholders until all such Registrable Securities have ceased to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to this Section 5.01, but in any event within two (2) Business Days of such date, the Company shall notify the Stockholders of the effectiveness of such Registration Statement. When effective, a Registration Statement filed pursuant to this Section 5.01 (including any documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any Prospectus contained in such Registration Statement, in the light of the circumstances under which such statement is made).
Section 5.02 Underwritten Offering.
(a) In the event that following the expiration of the Lock-up Period, any Stockholder(s) holding more than 1,500,000 shares of Registrable Securities elects to dispose of Registrable Securities under a Registration Statement pursuant to an Underwritten Offering of all or part of such Registrable Securities that are registered by such Registration Statement and reasonably expects aggregate gross proceeds in excess of $10,000,000(the “Minimum Amount”) from such Underwritten Offering, then the Company shall, upon the written demand of such Stockholders (any such Stockholder a “Demanding Holder” and, collectively, the “Demanding Holders”), enter into an underwriting agreement in a form as is customary in an Underwritten Offering of equity securities with the managing Underwriter or Underwriters selected by the Company after consultation with the Demanding Holders and shall take all such other reasonable actions as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable Securities; provided, however, that the Company shall have no obligation to facilitate or participate in more than one (1) Underwritten Offering per calendar quarter pursuant to this Section 5.02 for the Stockholders (the “Underwritten Offering Cap”); provided further that if an Underwritten Offering is commenced but terminated prior to the pricing thereof for any reason, such Underwritten Offering will not be counted as an Underwritten Offering pursuant to this Section 5.02.
(b) Notice. In addition, the Company shall give prompt written notice to each other Stockholder regarding such proposed Underwritten Offering, and such notice shall offer such Stockholder the opportunity to include in the Underwritten Offering such number of Registrable Securities as each such Stockholder may request. Except in the event of an Underwritten Offering in the form of a Block Trade, each such Stockholder shall make such request in writing to the Company within two (2) Business Days after the receipt of any such notice from the Company, which request shall specify the number of Registrable Securities intended to be disposed of by such Stockholder (any such Stockholder, a “Demand Registration Participant” and, collectively, the “Demand Registration Participants”). In connection with any Underwritten Offering contemplated by this Section 5.02, the underwriting agreement into which each Demanding Holder, each Demand Registration Participant and the Company shall enter shall contain such representations, covenants, indemnities (subject to Section 5.05) and other rights and obligations as are customary in an underwritten offering of equity securities. No Demanding Holder or Demand Registration Participant shall be required to make any representations or warranties to or agreements with the Company or the Underwriters other than representations, warranties or agreements regarding such Demanding Holder’s or Demand Registration Participant’s authority to enter into such underwriting agreement and to sell, and its ownership of, the securities being registered on its behalf, its intended method of distribution and any other representation required by law.
(c) Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Offering, in good faith, advises the Company, the Demanding Holders and the Demand Registration Participant that the dollar amount or number of Registrable Securities that the Demanding Holders and Demand Registration Participant desire to sell, taken together with all Common Stock or other equity securities that the Company or any other Stockholder desires to sell and the shares of Common Stock, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows:
i. first, the Registrable Securities of the Demanding Holders and Demand Registration Participants pro rata based on the respective number of Registrable Securities that each Demanding Holder and Demand Registration Participant has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Demanding Holders and Demand Registration Participants have requested be included in such Underwritten Offering that can be sold without exceeding the Maximum Number of Securities;
ii. second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and
iii. third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i) and clause (ii), Common Stock or other equity securities of (x) other Stockholders who have elected to participate in the Underwritten Offering pursuant to Section 5.02(a) or (y) persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons, pro rata, which can be sold without exceeding the Maximum Number of Securities.
(d) A Demanding Holder or Demand Registration Participant shall have the right to withdraw all or any portion of its Registrable Securities included in an Underwritten Offering pursuant to this Section 5.02 for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters of its intention to withdraw from such Underwritten Offering prior to the pricing of such Underwritten Offering and such withdrawn amount shall no longer be considered an Underwritten Offering; provided, however, that upon the withdrawal of an amount of Registrable Securities that results in the remaining amount of Registrable Securities included by the Demanding Holders and Demand Registration Participants in such Underwritten Offering being less than the Minimum Amount, the Company shall cease all efforts to complete the Underwritten Offering and, for the avoidance of doubt, such Underwritten Offering shall not count against the Underwritten Offering Cap. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with an Underwritten Offering prior to its withdrawal under this Section 5.02(d).
(e) If the Company receives a request from any Stockholder(s) owning Registrable Securities with a then-current estimated market value of at least $25,000,000 that the Company effect the sale of all or any portion of such Registrable Securities in an Underwritten Offering in the form of a Block Trade, then the Company shall, as expeditiously as possible, cooperate and effect the offering in such Block Trade of the Registrable Securities for which such requesting Holder has requested such offering, without giving any effect to any required notice periods or delivery of notices to any other Holders. Any offering conducted as a Block Trade will not count as an Underwritten Offering for purposes of Section 5.02(a).
Section 5.03 Piggyback Registration Rights.
(a) If at any time the Company proposes to file a Registration Statement under the Securities Act with respect to an Underwritten Offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of stockholders of the Company on a form that would permit registration of Registrable Securities, other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment plan or (v) on Form S-4, then the Company shall give written notice of such proposed filing to all of the Stockholders as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Stockholders the opportunity to register the sale of such number of Registrable Securities as such Stockholders may request in writing within twenty (20) days after receipt of such written notice (in the case of an “overnight” or “bought” offering, such requests must be made by the Stockholders within two (2) Business Days after the delivery of any such notice by the Company) (such Registration a “Piggyback Registration”); provided, however, that if the Company has been advised by the managing Underwriter(s) that the inclusion of Registrable Securities for sale for the benefit of the Stockholders will have an adverse effect on the price, timing or distribution of the Common Stock in the Underwritten Offering, then (A) if no Registrable Securities can be included in the Underwritten Offering in the opinion of the managing Underwriter(s), the Company shall not be required to offer such opportunity to the Stockholders or (B) if any Registrable Securities can be included in the Underwritten Offering in the opinion of the managing Underwriter(s), then the amount of Registrable Securities to be offered for the accounts of Stockholders shall be determined based on the provisions of Section 5.03(b).
(b) Subject to Section 5.03(a), the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Stockholders pursuant to this Section 5.03 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. If no written request for inclusion from a Stockholder is received within the specified time, each such Stockholder shall have no further right to participate in such Underwritten Offering. All such Stockholders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 5.03 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.
(c) If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Stockholders participating in the Piggyback Registration that the dollar amount or number of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Stockholders hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 5.02, and (iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:
i. If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration:
(A) first, shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), pro rata to the Registrable Securities of Stockholders exercising their rights to register their Registrable Securities pursuant to Section 5.03 hereof; and
(C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), shares of Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number of Securities;
ii. If the Registration is pursuant to a request by persons or entities other than the Stockholders, then the Company shall include in any such Registration
(A) first, shares of Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Stockholders, which can be sold without exceeding the Maximum Number of Securities;
(B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), pro rata to the Registrable Securities of Stockholders exercising their rights to register their Registrable Securities pursuant to Section 5.03 hereof;
(C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and
(D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
iii. Any Stockholder shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of its intention to withdraw from such Piggyback Registration prior to the pricing of such Underwritten Offering. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 5.03.
(d) For purposes of clarity, any Registration effected pursuant to Section 5.03 hereof shall not be counted as a Registration effected under Section 5.02 hereof.
Section 5.04 Company Procedures.
(a) General Procedures. The Company shall use its reasonable best efforts to effect the Registration of Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as practicable:
i. prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable Shares have been disposed of (if earlier) in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
ii. prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Stockholders included in such Registration, and to the legal counsel selected by such Stockholders, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration (including each preliminary Prospectus), and such other documents as the Underwriters and the Stockholders included in such Registration or the legal counsel for any such Stockholders may request in order to facilitate the disposition of the Registrable Securities owned by such Stockholders.
iii. prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Stockholders included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Stockholders included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
iv. cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
v. provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
vi. advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
vii. at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement furnish a copy thereof to each seller of such Registrable Securities and its counsel, including, without limitation, providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus;
viii. notify the Stockholders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 5.04(c)Section 5.04 hereof;
ix. permit a representative of the Stockholders (such representative to be selected by a majority of the participating Stockholders), the Underwriters, if any, and any attorney or accountant retained by such Stockholders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; and provided further, the Company may not include the name of any Stockholder or Underwriter or any information regarding any Stockholder or Underwriter in any Registration Statement or Prospectus, any amendment or supplement to such Registration Statement or Prospectus, any document that is to be incorporated by reference into such Registration Statement or Prospectus, or any response to any comment letter, without the prior written consent of such Stockholder or Underwriter and providing each such Stockholder or Underwriter a reasonable amount of time to review and comment on such applicable document, which comments the Company shall include unless contrary to applicable law;
x. obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration which the participating Stockholders may rely on, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Stockholders;
xi. on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Stockholders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Stockholders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Stockholders;
xii. in the event of an Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
xiii. make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
xiv. if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $35,000,000, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in an Underwritten Offering; and
xv. otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Stockholders, in connection with such Registration.
(b) Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Stockholders that the Stockholders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Stockholders.
(c) Requirements for Participation in an Underwritten Offering. No person may participate in an Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in an underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangement.
(d) Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Stockholders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed (any such period, a “Suspension Period”). If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by the Company to be necessary for such purpose (any such period, a “Blackout Period”. In the event the Company exercises its rights under the preceding sentence, the Stockholders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Stockholders of the expiration of any period during which it exercised its rights under this Section 6.04(d). Notwithstanding anything to the contrary in this Section 6.04, in no event shall any Suspension Period or any Blackout Period continue for more than ninety (90) days in the aggregate during any 365-day period.
(e) Reporting Obligations. As long as any Stockholder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Stockholders with true and complete copies of all such filings. The Company further covenants that it shall take such further action as any Stockholder may reasonably request, all to the extent required from time to time to enable such Stockholder to sell shares of Common Stock held by such Stockholder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Stockholder, the Company shall deliver to such Stockholder a written certification of a duly authorized officer as to whether it has complied with such requirements.
Section 5.05 Indemnification and Contribution
(a) The Company agrees to indemnify, to the extent permitted by law, each Stockholder, its officers, agents and directors and each person who controls such Stockholder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Stockholder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Stockholder.
(b) In connection with any Registration Statement in which a Stockholder is participating, such Stockholder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) caused by any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Stockholder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Stockholders of Registrable Securities, and the liability of each such Stockholder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Stockholder from the sale of Registrable Securities pursuant to such Registration Statement. The Stockholders shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
(c) Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the prior written consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(d) The indemnification provided for under this Article V shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Stockholder participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Stockholder’s indemnification is unavailable for any reason.
(e) If the indemnification provided under Section 5.05 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Stockholder under this Section 5.05(e) shall be limited to the amount of the net proceeds received by such Stockholder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Section 5.05(a), (b) and (c) above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection Section 5.05(e) were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 5.05(e). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5.05(e) from any person who was not guilty of such fraudulent misrepresentation.
Section 5.06 Miscellaneous Registration Rights Provisions
(a) Prior to the expiration of the Lock-up Period, no Stockholder may assign or delegate such Stockholder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with such Transfer of Registrable Securities pursuant to Section 2.02.
(b) Other Registration Rights. The Company represents and warrants that no Person, other than a Stockholder, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person except as provided herein, the PIPE Subscription Agreement (as defined in the BCA), or the Bridge Financing Agreement (as defined in the BCA). Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
Article
VI.
MISCELLANEOUS
Section 6.01 Release of Liability.
In the event any Stockholder shall Transfer all of the Common Stock held by such Stockholder in compliance with the provisions of this Agreement (including, without limitation, if accompanied with the assignment of rights and obligations hereunder, the execution and delivery by the transferee of a Joinder Agreement) without retaining any interest therein, then such Stockholder shall cease to be a party to this Agreement and shall be relieved and have no further liability arising hereunder for events occurring from and after the date of such Transfer, except in the case of fraud or intentional misconduct.
Section 6.02 Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given or made as follows: (a) when delivered in person or by a nationally recognized overnight courier (with written confirmation of receipt), (b) upon receipt of confirmation of successful transmission if sent by facsimile or e-mail or (c) upon receipt if sent by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 6.02):
If to any of the QOMPLX Stockholder Group:
QOMPLX, Inc.
1775 Tysons Blvd Suite 800,
Tysons, VA 22102
Attn: Jason Crabtree
[Redacted]
E-mail: [Redacted]
with a copy to (which shall not constitute notice):
King & Spalding LLP
1650 Tysons Boulevard, Suite 400
McLean, VA 22102
Attn: Thomas J. Knox
Daniel R. Kahan
E-mail: tknox@kslaw.com
dkahan@kslaw.com
If to the Company to:
QOMPLX, Inc.
1775 Tysons Blvd Suite 800,
Tysons, VA 22102
Attn: Jason Crabtree
[Redacted]
E-mail: [Redacted]
with a copy to (which shall not constitute notice):
King & Spalding LLP
1650 Tysons Boulevard, Suite 400
McLean, VA 22102
Attn: Thomas J. Knox
Daniel R. Kahan
E-mail: tknox@kslaw.com
dkahan@kslaw.com
If to Tailwind Sponsor to:
1545 Courtney Ave
Los Angeles, California 90046
Attn: Chris Hollod
E-mail: [Redacted]
in each case, with copies to:
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attn: Christian O. Nagler
Peter S. Seligson
Aaron M. Schleicher
E-mail: cnagler@kirkland.com
peter.seligson@kirkland.com
aaron.schleicher@kirkland.com
Section 6.03 Interpretation.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Exhibits and Schedules mean the Articles and Sections of, and Exhibits and Schedules attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits and Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
Section 6.04 Headings.
The headings and other captions in this Agreement are for convenience and reference only and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect.
Section 6.05 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby are consummated as originally contemplated to the fullest extent possible.
Section 6.06 Entire Agreement.
This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Section 6.07 Amendment and Modification; Waiver.
This Agreement may be amended only by a written instrument signed by (a) the Company, (b) the QOMPLX Stockholder Group Representative (for so long as the QOMPLX Stockholder Group continues to own Common Stock), and (c) Tailwind Sponsor (for so long as Tailwind Sponsor continues to own Common Stock); provided, however, that no such amendment shall materially and adversely change the rights or obligations of any Stockholder without the written approval of such affected Stockholder. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Company shall not waive any provision of this Agreement without the written consent of (x) the QOMPLX Stockholder Group Representative (for so long as the QOMPLX Stockholder Group continues to own Common Stock) and (y) Tailwind Sponsor (for so long as Tailwind Sponsor continues to own Common Stock).
Section 6.08 QOMPLX Stockholder Group Representative. Each QOMPLX Stockholder hereby irrevocably and unconditionally authorizes and appoints the QOMPLX Stockholder Group Representative as representative of the QOMPLX Stockholder Group for all purposes of Section 6.07. Any action taken or any exercise of powers under Section 6.07 by the QOMPLX Stockholder Group Representative shall be binding on each QOMPLX Stockholder for purposes thereof, shall be deemed to be taken or exercised by each QOMPLX Stockholder, and the Company and other Stockholders shall be entitled to assume that any action taken by the QOMPLX Stockholder Group Representative for purposes of Section 6.07 is binding on all of QOMPLX Stockholders, and the parties shall be entitled to rely on the same without being required to make further enquiries in respect thereof. None of the Company or any of the Stockholders shall have any obligation to monitor or supervise the QOMPLX Stockholder Group Representative. None of the Company or the Stockholders shall be liable to any QOMPLX Stockholder for any action taken or omitted to be taken by the QOMPLX Stockholder Group Representative. Each QOMPLX Stockholder hereby irrevocably and unconditionally releases and waives any and all claims and demands of any kind whatsoever (whether existing now or in the future, including with respect to contingent liabilities), such Stockholder may have against the QOMPLX Stockholder Group Representative in relation to the performance (or non-performance) of any of the rights and duties of the QOMPLX Stockholder Group Representative pursuant to Section 6.07, except in the case of fraud or willful misconduct by the QOMPLX Stockholder Group Representative.
Section 6.09 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns and transferees. Neither this Agreement nor any right, benefit, remedy, obligation or liability arising hereunder may be assigned by any party without the prior written consent of the other parties, and any attempted assignment without such consent shall be null and void and of no effect; provided that a Stockholder may assign any and all of its rights under this Agreement (whether its personal rights or its rights as a member of the QOMPLX Stockholder Group, if applicable), together with its Common Stock, to a permitted assignee or transferee in compliance with Article II hereof (and such transferee or assignee shall be deemed to be a member of the any of the above mentioned groups to which the transferor belonged).
Section 6.10 No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and transferees and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 6.11 Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
Section 6.12 Equitable Remedies.
Each party hereto acknowledges that the other parties hereto would be irreparably damaged in the event of a breach or threatened breach by such party of any of its obligations under this Agreement and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, each of the other parties hereto shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to an injunction from a court of competent jurisdiction (without any requirement to post bond) granting such parties specific performance by such party of its obligations under this Agreement.
Section 6.13 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 6.14 Jurisdiction and Venue; Waiver of Jury Trial.
Each party hereto hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of Delaware and the United States District Court therein in connection with any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO, AND AGREES NOT TO REQUEST, TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.15 Termination of QOMPLX Stockholders Arrangements
Each QOMPLX Stockholder hereby agrees and agrees to cause its applicable Affiliates to, and the Company hereby agrees to take all reasonable actions necessary to terminate, effective as of the Closing, each of the Company Stockholder Agreements (as defined in the BCA) and any other agreement with Company to which such QOMPLX Stockholder or any of its Affiliates is a party and, by its terms, terminates upon a public offering of QOMPLX securities. Each QOMPLX Stockholder hereby acknowledges and agrees, and agrees to cause its applicable affiliates to acknowledge and agree, that for the purposes of each of the agreements (if any) to which such Stockholder is a party with the Company that, by its terms, is to automatically terminate upon a public offering of any securities of QOMPLX, the consummation of the Transactions shall be deemed to constitute such a public offering and that such agreements shall terminate in accordance with such terms, effective as of the Closing.
Section 6.16 Additional Securities Subject to Agreement
Each Stockholder agrees that any other Company Equity Interests which it shall hereafter acquire by means of a stock split, stock dividend, distribution, exercise of warrants or options, purchase or otherwise shall be subject to the provisions of this Agreement to the same extent as if held on the date hereof.
Section 6.17 Further Assurances
Each party to this Agreement shall cooperate and take such action as may be reasonably requested by another party to this Agreement in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby.
[Signature Page Immediately Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
Company: | |||
Tailwind Acquisition Corp. |
|||
By: | /s/ Chris Hollod | ||
Name: | Chris Hollod | ||
Title: | Chief Executive Officer |
Tailwind Sponsor: | |||
Tailwind Sponsor LLC |
|||
By: | /s/ Philip Krim | ||
Name: | Philip Krim | ||
Title: | Manager |
QOMPLX Stockholders:
|
CANNAE HOLDINGS, LLC | ||
By: | /s/ Michael Gravelle | |
Name: | Michael Gravelle | |
Title: | Managing Director | |
BILCAR, LLC | ||
By: | /s/ William P. Foley, II | |
Name: | William P. Foley, II | |
Title: | Manager | |
CLAYTON H. DEGIACINTO | ||
By: | /s/ Clayton H. DeGiacinto | |
WILLIAM GLIDEWELL | ||
By: | /s/ William Glidewell | |
ARNOLD L. CHASE | ||
By: | /s/ Arnold L. Chase | |
CHD IRA LLC | ||
By: | /s/ Clayton H. DeGiacinto | |
Name: | Clayton H. DeGiacinto | |
Title: | Manager | |
CHERYL A. CHASE INVESTMENT TRUST | ||
By: | /s/ Cheryl A. Chase | |
Name: | Cheryl A. Chase | |
Title: | Trustee |
CONAN WARD | ||
By: | /s/ Conan Ward | |
CRABTREE 2021 GRAT AND SPOUSAL TRUST | ||
By: | /s/ William P. Foley, II | |
Name: | William P. Foley, II | |
Title: | Manager | |
CRABTREE DYNASTY TRUST | ||
By: | /s/ Clayton H. DeGiacinto | |
Name: | Clayton H. DeGiacinto | |
Title: | Trustee | |
CRABTREE FAMILY FLINT CREEK TRUST | ||
By: | /s/ Clayton H. DeGiacinto | |
Name: | Clayton H. DeGiacinto | |
Title: | Trustee | |
CW INVESTMENT COMPANY, LLC | ||
By: | /s/ Conan Ward | |
Name: | Conan Ward | |
Title: | Manager | |
DEGIANCINTO FAMILY 2016 EXEMPT TRUST | ||
By: | /s/ Scott Schaecher | |
Name: | Scott Schaecher | |
Title: | Trustee | |
DEGIANCINTO FAMILY 2016 NON-EXEMPT TRUST | ||
By: | /s/ Scott Schaecher | |
Name: | Scott Schaecher | |
Title: | Trustee |
DEGIANCINTO FAMILY 2020 EXEMPT SPOUSAL TRUST | ||
By: | /s/ Caren Schaecher | |
Name: | Caren Schaecher | |
Title: | Trustee | |
EXPONENTIAL PARTNERS | ||
By: | /s/ Pat Wilkison | |
Name: | Pat Wilkison | |
Title: | Manager Partner | |
EBY BROTHERS INVESTMENTS, LLC | ||
By: | /s/ Matthew Eby | |
Name: | Matthew Eby | |
Title: | ||
JASON CRABTREE | ||
By: | /s/ Jason Crabtree | |
JOHN FERRARI | ||
By: | /s/ John Ferrari | |
RATIONEM, LLC | ||
By: | /s/ Jason Crabtree | |
Name: | Jason Crabtree | |
Title: | Managing Member | |
REDLEG CAPITAL LLC | ||
By: | /s/ Clayton H. DeGiacinto | |
Name: | Clayton H. DeGiacinto | |
Title: | Manager |
TENGRAM CAPITAL PARTNERS, LP | ||
By: | /s/ Matthew Eby | |
Name: | Matthew Eby | |
Title: | Managing Partner | |
THE ARNOLD L. CHASE INVESTMENT TRUST | ||
By: | /s/ Arnold L. Chase | |
Name: | Arnold L. Chase | |
Title: | Trustee | |
THE DAFFRON NEXT GENERATION TRUST | ||
By: | /s/ Linda Ann Daffron | |
Name: | Linda Ann Daffron | |
Title: | Trustee | |
MVF PATTERN ACQUISITION, LP | ||
By: | /s/ Rob Heyvaert | |
Name: | Rob Hayvaert | |
Title: | Managing Partner |
Exhibit 10.3
Confidential
SUBSCRIPTION AGREEMENT
Tailwind Acquisition Corp.
1545 Courtney Avenue
Los Angeles, CA 90046
Ladies and Gentlemen:
This Subscription Agreement (this “Subscription Agreement”) is being entered into as of the date set forth on the signature page hereto, by and between Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), and the undersigned subscriber (the “Investor”), in connection with the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), by and among Tailwind, Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), QOMPLX, Inc., a Delaware corporation (the “Company”), and Rationem, LLC, in its capacity as representative of the Company Stockholders, pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, becoming a wholly-owned subsidiary of Tailwind, on the terms and subject to the conditions set forth in the Transaction Agreement (such merger, the “Transaction”).
In connection with the Transaction, Tailwind is seeking commitments from interested investors to purchase, prior to the closing of the Transaction, shares of Tailwind’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), in a private placement for a purchase price of $10.00 per share (the “Per Share Purchase Price”). On or about the date of this Subscription Agreement, Tailwind is entering into subscription agreements (the “Other Subscription Agreements”, and together with the Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Investors”, and together with the Investor, the “PIPE Investors”), severally and not jointly, pursuant to which the PIPE Investors, severally and not jointly, have agreed to purchase on the closing date of the Transaction, inclusive of the shares of Class A Common Stock subscribed for by the Investor (the “Shares”), an aggregate amount of up to 18,000,000 shares of Class A Common Stock at the Per Share Purchase Price (the “PIPE Financing”), which amount includes 2,000,000 shares of Class A Common Stock to be issued to certain investors pursuant to the Convertible Note Purchase Agreement (as defined below) in respect of the aggregate principal amount of the Notes (as defined in the Convertible Note Purchase Agreement) held by such investors, on the terms and subject to the conditions set forth therein. An additional 835,539 shares of Class A Common Stock (the “Additional Shares”) have been committed to a lead investor (the “Lead Investor”) in exchange for their agreement (the “Lead Investor Subscription Agreement”) to act as the lead investor in the PIPE Financing and commit to $50,000,000 of the aggregate PIPE Financing amount. The aggregate purchase price to be paid by the Investor for the subscribed Shares (as set forth on the signature page hereto) is referred to herein as the “Subscription Amount”.
In connection therewith, and in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, each of the Investor and Tailwind acknowledges and agrees as follows:
1. Subscription. The Investor subscribes for and agrees to purchase from Tailwind, and Tailwind agrees to issue and sell to Investor, the number of Shares set forth on the signature page of this Subscription Agreement on the terms and subject to the conditions set forth in this Subscription Agreement. The Investor acknowledges and agrees that Tailwind reserves the right to accept or reject the Investor’s subscription for the Shares for any reason or for no reason, in whole or in part, at any time prior to its acceptance, and the same shall be deemed to be accepted by Tailwind only when this Subscription Agreement is signed by a duly authorized person by or on behalf of Tailwind; Tailwind may do so in counterpart form.
2. Closing. The closing of the sale, purchase and issuance of the Shares contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transaction and satisfaction of the other conditions set forth in Section 3 hereof. The Closing shall occur on the date of, and immediately prior to, the effectiveness of the Transaction (the date the Closing so occurs, the “Closing Date”). Upon delivery of written notice from (or on behalf of) Tailwind to the Investor (the “Closing Notice”), that Tailwind reasonably expects all conditions to the closing of the Transaction under the Transaction Agreement to be satisfied or waived on a date that is not less than five (5) business days from the date on which the Closing Notice is delivered to the Investor, the Investor shall deliver to Tailwind, three (3) business days prior to the anticipated closing date specified in the Closing Notice, the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account(s) specified by Tailwind in the Closing Notice (which account shall not be an escrow account). On the Closing Date, Tailwind shall issue a number of Shares to the Investor set forth on the signature page to this Subscription Agreement and subsequently cause such Shares to be registered in book entry form, free and clear of any liens or other restrictions (other than those arising under this Subscription Agreement, the organizational documents of Tailwind, or applicable securities law), in the name of the Investor (or its nominee in accordance with its delivery instructions) and as promptly as practicable after the Closing, on and as of the Closing Date; provided, however, that Tailwind’s obligation to issue the Shares to the Investor is contingent upon Tailwind having received the Subscription Amount in full accordance with this Section 2. In the event that the consummation of the Transaction does not occur within one (1) business day after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by Tailwind and the Investor, Tailwind shall promptly (but in no event later than two (2) business days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by the Investor to Tailwind by wire transfer in immediately available funds to the account specified by Investor, and any book entries representing the Shares shall be deemed cancelled. For purposes of this Subscription Agreement, “business day” shall mean a day, other than a Saturday or Sunday, on which commercial banks in New York, New York and Los Angeles, California are open for the general transaction of business.
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3. Closing Conditions.
a. The obligation of the parties hereto to consummate the sale, purchase and issuance of the Shares pursuant to this Subscription Agreement is subject to the following conditions:
(i) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and
(ii) all conditions precedent to the closing of the Transaction set forth in Article 6 of the Transaction Agreement shall have been satisfied (which shall be deemed satisfied if mutually determined by the parties to the Transaction Agreement and other than those conditions under the Transaction Agreement that, by their nature are to be satisfied in connection with the closing of the Transaction, including to the extent that any such condition is dependent upon the consummation of the sale, purchase and issuance of the Shares pursuant to this Subscription Agreement or the Other Subscription Agreements) or waived by the parties to the Transaction Agreement as provided therein.
b. The obligation of Tailwind to consummate the sale and issuance of the Shares pursuant to this Subscription Agreement shall be subject to the condition (which may be waived in writing by Tailwind) that all representations and warranties of the Investor contained in this Subscription Agreement are true and correct in all material respects at and as of the Closing Date (except for those representations and warranties that speak as of a specified earlier date, which shall be so true and correct in all material respects as of such specified earlier date), and consummation of the Closing shall constitute a reaffirmation by the Investor of each of the representations and warranties of the Investor contained in this Subscription Agreement in all material respects as of the Closing Date (except those that speak as of a specified earlier date).
c. The obligation of the Investor to consummate the purchase of the Shares pursuant to this Subscription Agreement shall be subject to the following conditions (which may be waived in writing by the Investor):
i. | that all representations and warranties of Tailwind contained in this Subscription Agreement shall be true and correct in all material respects at and as of the Closing Date (except for (A) those representations and warranties qualified by materiality, Material Adverse Effect (as defined below) or similar qualification, which shall be true and correct in all respects as of the Closing Date and (B) those representations and warranties that speak as of a specified earlier date, in which case as of such specified earlier date), and consummation of the Closing shall constitute a reaffirmation by Tailwind of each of the representations and warranties of Tailwind contained in this Subscription Agreement in all material respects as of the Closing Date (except those that speak as of a specified earlier date); |
ii. | Tailwind shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing; and |
iii. | the Transaction Agreement (as the same exists on the date of this Subscription Agreement) shall not have been amended or modified, and no waiver shall have occurred thereunder, that would materially adversely affect the economic benefits that the Investor would reasonably expect to receive under this Subscription Agreement without the Investor’s prior written consent. |
4. Further Assurances. At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription as contemplated by this Subscription Agreement.
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5. Tailwind Representations and Warranties. Tailwind represents and warrants to the Investor that:
a. Tailwind is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Tailwind has all corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
b. As of the Closing Date, the Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the Shares will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement, the organizational documents of Tailwind or applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under Tailwind’s organizational documents (as amended on or prior to the Closing Date) or under the General Corporation Law of the State of Delaware or any similar rights pursuant to any agreement or other instrument to which Tailwind is a party or by which it is otherwise bound.
c. The execution, delivery and performance by Tailwind of this Subscription Agreement are within the powers of Tailwind and have been duly authorized, validly executed and delivered by Tailwind and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement constitutes a valid and binding agreement of Tailwind and is enforceable against Tailwind in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.
d. The execution, delivery and performance of this Subscription Agreement, including the sale and issuance of the Shares hereunder, and the compliance by Tailwind with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Tailwind or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Tailwind or any of its subsidiaries is a party or by which Tailwind or any of its subsidiaries is bound or to which any of the property or assets of Tailwind is subject that would reasonably be expected to have a material adverse effect on the business, financial condition, stockholders’ equity or results of operations of Tailwind and its subsidiaries, taken as a whole or on the validity of the Shares or the legal authority of Tailwind to comply in all material respects with the terms of this Subscription Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of Tailwind; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Tailwind or any of its properties or assets that would reasonably be expected to have a material adverse effect on Tailwind or materially affect the validity of the Shares or the legal authority of Tailwind to comply in all material respects with the Subscription Agreement.
e. As of their respective dates, all reports and filings (the “SEC Reports”) required to be filed by Tailwind with the U.S. Securities and Exchange Commission (the “SEC”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended, (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of Tailwind included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of Tailwind as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Investor via the SEC’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by Tailwind from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports.
f. Tailwind is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by Tailwind of this Subscription Agreement (including, without limitation, the issuance of the Shares), other than filings (i) with the SEC, (ii) required by applicable state securities laws, (iii) required by the New York Stock Exchange, or such other applicable stock exchange on which Tailwind’s common equity is then listed (the “Stock Exchange”), and (iv) the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
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g. As of the date hereof, the authorized capital stock of Tailwind consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 550,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (1) 500,000,000 shares of Class A Common Stock and (2) 50,000,000 shares of Class B Common Stock, par value $0.0001 (“Class B Common Stock”). As of the date hereof, (i) no shares of Preferred Stock are issued and outstanding, (ii) 33,421,570 shares of Class A Common Stock are issued and outstanding, (iii) 8,355,393 shares of Class B Common Stock are issued and outstanding and (iv) 16,710,785 redeemable warrants and 9,700,000 private placement warrants are outstanding. All (i) issued and outstanding shares of Class A Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding warrants have been duly authorized and validly issued. Except as set forth above and pursuant to the Other Subscription Agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Reports, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Tailwind any shares of Common Stock or other equity interests in Tailwind, or securities convertible into or exchangeable or exercisable for such equity interests. There are no securities or instruments issued by or to which Tailwind is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares hereunder, (ii) the shares of Class A Common Stock to be issued pursuant to any Other Subscription Agreement, or (iii) the Additional Shares that have not been or will not be validly waived on or prior to the Closing Date, including such provisions in the Class B Common Stock pursuant to the terms of Tailwind’s certificate of incorporation.
h. The issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange. As of the date hereof, there is no suit, action, proceeding or investigation pending or, to the knowledge of Tailwind, threatened against Tailwind by the Stock Exchange or the SEC, respectively, to prohibit or terminate the listing of the Class A Common Stock, or to deregister the Class A Common Stock under the Exchange Act. Tailwind has taken no action that is designed to terminate the registration of the Class A Common Stock under the Exchange Act. At Closing, the Shares acquired hereunder will be approved for listing on the Stock Exchange, subject to official notice of issuance.
i. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6, no registration under the Securities Act is required for the offer and sale of the Shares by Tailwind to the Investor hereunder. The Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Neither Tailwind, nor any person acting on its behalf, has, directly or indirectly, made any offers or sales of any Tailwind security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by Tailwind on an exemption from registration for the transactions contemplated hereby or would require registration of the Shares under the Securities Act.
j. Other than the Placement Agent (as defined below), whose costs and expenses shall be borne solely by Tailwind, Tailwind has not engaged any broker, finder, commission agent, placement agent or arranger in connection with the sale of the Shares, and Tailwind is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Shares other than to the Placement Agent.
k. Tailwind is not, and immediately after receipt of payment for the Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
l. Other than with respect to the Other Subscription Agreements, the Transaction Agreement and any other agreement contemplated by the Transaction Agreement, including that certain Convertible Note Purchase Agreement, dated the date hereof, by and between Tailwind, the Company, the Lead Investor and the other parties thereto, Tailwind has not entered into any side letter or similar agreement with any Other Investor or any other investor in connection with such Other Investor’s or investor’s direct or indirect investment in Tailwind (other than any side letter or similar agreement relating to the transfer to any investor of (i) securities of Tailwind by existing securityholders of Tailwind, which may be effectuated as a forfeiture to Tailwind and reissuance, or (ii) securities to be issued to the direct or indirect securityholders of the Company pursuant to the Transaction Agreement). No Other Subscription Agreement (other than the Lead Investor Subscription Agreement in respect of the issuance of the Additional Shares to the Lead Investor) includes terms and conditions that are materially more advantageous to any such Other Investor than the Investor hereunder, and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement.
m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or material adverse effect on Tailwind, as of the date hereof, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of Tailwind, threatened against Tailwind or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against Tailwind.
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6. Investor Representations and Warranties. The Investor represents and warrants to Tailwind that:
a. The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A).
b. The Investor acknowledges and agrees that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares have not been registered under the Securities Act. The Investor acknowledges and agrees that the Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Tailwind or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Shares shall contain a restrictive legend to such effect. The Investor acknowledges and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. The Investor acknowledges and agrees that the Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that Tailwind files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, transfer, pledge or disposition of any of the Shares.
c. The Investor acknowledges and agrees that the Investor is purchasing the Shares from Tailwind. The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of Tailwind, the Company, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Tailwind expressly set forth in this Subscription Agreement.
d. The Investor’s acquisition and holding of the Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Shares. Without limiting the generality of the foregoing, the Investor acknowledges that it has had the opportunity to review Tailwind’s filings with the SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Shares.
f. The Investor became aware of this offering of the Shares solely by means of direct contact between the Investor and Tailwind, the Company or a representative of Tailwind or the Company, and the Shares were offered to the Investor solely by direct contact between the Investor and Tailwind, the Company or a representative of Tailwind or the Company. The Investor did not become aware of this offering of the Shares, nor were the Shares offered to the Investor, by any other means. The Investor acknowledges that the Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, Tailwind, the Company, the Placement Agent, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties of Tailwind contained in this Subscription Agreement, in making its investment or decision to invest in Tailwind.
g. The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Shares, including, without limitation, those set forth in Tailwind’s filings with the SEC. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision.
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h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in Tailwind. The Investor acknowledges specifically that a possibility of total loss exists. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer, and is able to sustain a complete loss on its investment in the Shares.
i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agent or any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing concerning Tailwind, the Company, the Transaction, the Transaction Agreement, this Subscription Agreement or the transactions contemplated hereby or thereby, the Shares or the offer and sale of the Shares.
j. The Investor acknowledges that the Placement Agent (i) has not provided the Investor with any information or advice with respect to the Shares, (ii) has not made any representation, express or implied as to Tailwind, the Company, the Company’s credit quality, the Shares or the Investor’s purchase of the Shares, (iii) has not acted as the Investor’s financial advisor or fiduciary in connection with the issue and purchase of Shares, and (iv) may have acquired, or may acquire, non-public information with respect to the Company, which the Investor agrees need not be provided to it.
k. The Investor acknowledges that it has not relied on the Placement Agent in connection with its determination as to the legality of its acquisition of the Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agent, any of its affiliates or any person acting on its behalf have conducted with respect to the Shares, Tailwind or the Company. The Investor further acknowledges that it has not relied on any information contained in any research reports prepared by the Placement Agent or any of its affiliates.
l. The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares or made any findings or determination as to the fairness of this investment.
m. The Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
n. The execution, delivery and performance by the Investor of this Subscription Agreement are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and, if the Investor is not an individual, will not conflict with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding agreement of Tailwind, this Subscription Agreement has been duly executed and delivered by the Investor and constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived.
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p. The Investor acknowledges that no disclosure or offering document has been delivered to it by Jefferies LLC or any of its affiliates (the “Placement Agent”) in connection with the offer and sale of the Shares.
q. The Investor acknowledges that neither the Placement Agent, nor any of its affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to Tailwind, the Company or its subsidiaries or any of their respective businesses, or the Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by Tailwind.
r. The Investor acknowledges that in connection with the issue and purchase of the Shares, the Placement Agent has not acted as the Investor’s financial advisor or fiduciary.
s. When required to deliver payment to Tailwind pursuant to Section 2 above, the Investor will have sufficient funds to pay the Subscription Amount pursuant to this Subscription Agreement.
t. The Investor does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of Tailwind. Notwithstanding the foregoing, (i) in the case of an Investor that has other entities under common management with Investor that have no knowledge of this Subscription Agreement or of Investor’s participation in the Transaction (including Investor’s affiliates), the representation set forth above shall not apply to such other entities and (ii) in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares.
7. Registration Rights.
a. In the event that the Shares are not registered in connection with the consummation of the Transaction, Tailwind agrees that, within thirty (30) calendar days after the consummation of the Transaction, it will file with the SEC (at its sole cost and expense) a registration statement registering the resale of the Shares (the “Registration Statement”), and it shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) sixty (60) calendar days after the filing thereof (or ninety (90) calendar days after the filing thereof if the SEC notifies Tailwind that it will “review” the Registration Statement) and (ii) ten (10) business days after Tailwind is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review. Tailwind will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Investor for review (but not comment) at least two (2) business days in advance of filing the Registration Statement. Unless otherwise agreed to in writing by the Investor, the Investor shall not be identified as a statutory underwriter in the Registration Statement unless requested or required by statute, regulation or exchange rules; provided, that if the SEC requests that the Investor be identified as a statutory underwriter in the Registration Statement, the Investor will have the opportunity to withdraw from the Registration Statement. Notwithstanding the foregoing, if the SEC prevents Tailwind from including any or all of the shares of Class A Common Stock proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act or otherwise, such Registration Statement shall register for resale such number of shares of Class A Common Stock which is equal to the maximum number of shares of Class A Common Stock as is permitted by the SEC. In such event, the number of shares of Class A Common Stock to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares of Class A Common Stock under Rule 415 under the Securities Act, Tailwind shall file a new Registration Statement to register such shares of Class A Common Stock not included in the initial Registration Statement and cause such Registration Statement to become effective as promptly as practicable. Tailwind agrees to cause such Registration Statement, or another shelf registration statement that includes the Shares, to remain effective until the earliest of (i) the third anniversary of the Closing, (ii) the date on which the Investor ceases to hold any Shares, or (iii) the first date on which the Investor is able to sell all of its Shares (or shares received in exchange therefor) without restriction under Rule 144 of the Securities Act, including without limitation as to any volume and manner of sale restrictions and without the requirement that Tailwind be in compliance with the public information requirements of Rule 144(c) or Rule 144(i), as applicable. The Investor agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, to Tailwind upon request to assist Tailwind in making the determination described above. Tailwind may amend the Registration Statement so as to convert the Registration Statement to a Registration Statement on Form S-3 at such time after Tailwind becomes eligible to use such Form S-3.
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b. Notwithstanding anything to the contrary contained herein, Tailwind may, upon written notice to the Investor, delay or postpone filing of such Registration Statement, and from time to time require Investor not to sell under the Registration Statement or suspend the use of any such Registration Statement if it determines that in order for the Registration Statement to not contain a material misstatement or material omission, an amendment or supplement thereto would be needed, or if such filing or use would reasonably be expected to materially and adversely affect a bona fide business or financing transaction being pursued by Tailwind or would require premature disclosure of information that would reasonably be expected to materially and adversely affect Tailwind (each such circumstance, a “Suspension Event”); provided that (w) Tailwind shall not so delay filing or so suspend the use of the Registration Statement on more than three (3) occasions or for more than one-hundred twenty (120) total days in any three hundred sixty (360) day period or, on any occasion, for a period of more than sixty (60) consecutive days and (x) Tailwind shall use commercially reasonable efforts to make such Registration Statement available for the sale by the Investor of such securities as soon as practicable thereafter. Upon receipt of any such written notice from Tailwind (which notice shall not contain any material non-public information regarding Tailwind) of the occurrence of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, the Investor agrees that (i) it will immediately discontinue offers and sales of Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Investor receives copies of a supplemental or amended prospectus (which Tailwind agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and the Investor receives notice that any post-effective amendment has become effective or unless otherwise notified by Tailwind that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by Tailwind unless otherwise required by law, subpoena, regulatory request or requirement, or legal proceeding. If so directed by Tailwind, the Investor will deliver to Tailwind, or in the Investor’s sole discretion destroy, all copies of the prospectus covering the Shares in the Investor’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares shall not apply (w) to the extent the Investor is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.
c. Tailwind will file all reports, and provide all customary and reasonable cooperation, necessary to enable the Investor to resell the Shares pursuant to the Registration Statement (for as long as the Registration Statement shall remain effective) or Rule 144 of the Securities Act (when Rule 144 of the Securities Act becomes available to the Investor), as applicable, qualify the Shares for listing on the applicable stock exchange on which the Class A Common Stock is then listed, and update or amend the Registration Statement as necessary to include the Shares. Tailwind agrees, for as long as the Investor holds Shares, to file with the SEC in a timely manner all reports and other documents required of Tailwind under the Securities Act and the Exchange Act so long as Tailwind remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; make and keep public information available, as those terms are understood and defined in Rule 144; and furnish to the Investor so long as it owns Shares, promptly upon request, (x) a written statement by Tailwind, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of Tailwind and such other reports and documents so filed by Tailwind (public availability on the SEC’s EDGAR system (or successor system) being sufficient) and (z) such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration. If requested by the Investor, Tailwind shall (i) cause the removal of the restrictive legends from any Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Shares and, at the request of a Holder (as defined below), cause the removal of all restrictive legends from any Shares held by such Holder that may be sold by such Holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (ii) cause its legal counsel to deliver an opinion, if necessary, to the transfer agent in connection with the instruction under subclause (i) to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, in each case upon the receipt of customary representations and other documentation, if any, from the Holder as reasonably requested by Tailwind, its counsel or the transfer agent, establishing that restrictive legends are no longer required. “Holder” shall mean the Investor or any affiliate of the Investor to which the rights under this Section 7 shall have been assigned.
d. Tailwind’s obligations to include the Shares (or shares issued in exchange therefor) for resale in the Registration Statement are contingent upon the Investor furnishing in writing to Tailwind such information required by SEC rules for the Registration Statement regarding the Investor, the securities of Tailwind held by the Investor and the intended method of disposition of such Shares, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by Tailwind to effect the registration of such Shares, and shall execute such documents in connection with such registration as Tailwind may reasonably request that are customary of a selling stockholder in similar situations; provided that the Investor shall not be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restrictions on the ability to transfer the Shares.
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e. Tailwind shall advise the Investor as expeditiously as possible, but in any event within five (5) business days:
(i) when a Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information concerning the Investor;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(iv) of the receipt by Tailwind of any notification with respect to the suspension of the qualification of the Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, Tailwind shall not, when so advising the Investor of such events, provide the Investor with any material, nonpublic information regarding Tailwind other than to the extent that providing notice to the Investor of the occurrence of the events listed in (i) through (v) above constitutes material, nonpublic information regarding Tailwind.
f. Tailwind shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable. Upon the occurrence of any event contemplated in Section 7(e)(v), except for such times as Tailwind is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Subscription Agreement, Tailwind shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
g. Indemnification.
(i) Tailwind shall indemnify and hold harmless the Investor (to the extent a seller under the Registration Statement), the officers, directors, advisors and employees of the Investor, each person who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”) that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding the Investor furnished in writing to Tailwind by the Investor expressly for use therein or that the Investor has omitted a material fact from such information. Notwithstanding the foregoing, Tailwind’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Tailwind (which consent shall not be unreasonably withheld or delayed).
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(ii) The Investor shall, severally and not jointly with any Other Investor in the offering contemplated by this Subscription Agreement, indemnify and hold harmless Tailwind, its directors, officers and employees, each person who controls Tailwind (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and the directors, officers, advisors and employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding the Investor furnished in writing to Tailwind by the Investor expressly for use therein. In no event shall the liability of the Investor be greater in amount than the dollar amount of the net proceeds received by the Investor upon the sale of Shares giving rise to such indemnification obligation. Notwithstanding the foregoing, the Investor’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of the Investor (which consent shall not be unreasonably withheld or delayed).
(iii) Any person or entity entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(iv) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person or entity of such indemnified party and shall survive the transfer of securities.
(v) If the indemnification provided under this Section 7(g) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, the liability of the Investor shall be limited to the net proceeds received by the Investor from the sale of Shares giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in this Section 7, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 7(g) from any person or entity who was not guilty of such fraudulent misrepresentation.
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8. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms, (b) upon the mutual written agreement of each of the parties hereto and the Company to terminate this Subscription Agreement, and (c) the delivery of a notice of termination of this Subscription Agreement by the Investor to Tailwind following the date that is thirty (30) calendar days after the Termination Date (as defined in the Transaction Agreement, as in effect as of the date hereof, the “Outside Date”), if the Closing has not occurred by the Outside Date (the termination events described in clauses (a)–(c) above, collectively, the “Termination Events”); provided that nothing herein will relieve any party from liability for any fraud or willful and material breach of any covenant, agreement, obligation, representation or warranty hereunder prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such fraud or willful and material breach. Tailwind shall notify the Investor in writing of the termination of the Transaction Agreement as promptly as practicable after the termination of the Transaction Agreement. Upon the occurrence of any Termination Event, any monies paid by the Investor to Tailwind in connection herewith, shall promptly (and in any event within one business day) following the Termination Event be returned to the Investor.
9. Trust Account Waiver. The Investor acknowledges that Tailwind is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving Tailwind and one or more businesses or assets. The Investor further acknowledges that, as described in Tailwind’s prospectus relating to its initial public offering dated September 3, 2020 (the “Prospectus”) available at www.sec.gov, substantially all of Tailwind’s assets consist of the cash proceeds of Tailwind’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of Tailwind, its public shareholders and the underwriters of Tailwind’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to Tailwind to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of Tailwind entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement or the transactions contemplated hereby regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability; provided, however, that nothing in this Section 9 shall be deemed to limit the Investor’s right, title, interest or claim to any monies held in the Trust Account by virtue of its record or beneficial ownership of Class A Common Stock currently outstanding on the date hereof, pursuant to a validly exercised redemption right with respect to any such Class A Common Stock, in accordance with Tailwind’s Amended and Restated Certificate of Incorporation and the Investment Management Trust Agreement between Continental Stock Transfer & Trust Company and Tailwind, dated September 9, 2020, except to the extent that the Investor has otherwise agreed with Tailwind, the Company or any of their respective affiliates in writing to not exercise such redemption right.
10. Miscellaneous.
a. Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned; provided that the Investor may assign its rights hereunder to any fund or account managed by the same investment manager as the Investor, or an affiliate of the Investor, in each case without consent from Tailwind; provided that such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by an Investor, the assignee(s) shall become Investor hereunder and have the rights and obligations and be deemed to make the representations and warranties of the Investor provided for herein to the extent of such assignment; provided further that, no assignment shall relieve the assigning party of any of its obligations hereunder, including any assignment to any fund or account managed by the same investment manager as the Investor. Subject to the foregoing, this Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
b. Tailwind may request from the Investor such additional information as Tailwind may reasonably deem necessary or advisable to register the resale of the Shares and evaluate the eligibility of the Investor to acquire the Shares, and the Investor shall provide any such information as may reasonably be requested, provided that, Tailwind agrees to keep any such information provided by Investor confidential (except to the extent required to be disclosed by applicable law, including in connection with any filings required to be made with the SEC or the Stock Exchange, in which case Tailwind shall provide prior written notice to Investor of such disclosure). Without limiting the generality of the foregoing or any other covenants or agreements in this Subscription Agreement, the Investor acknowledges that Tailwind may file a copy of this Subscription Agreement with the SEC as an exhibit to a periodic report or a registration statement of Tailwind.
c. Each party acknowledges that the other party will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. The Investor acknowledges that the Placement Agent will rely on the representations and warranties of the Investor contained in this Subscription Agreement. Prior to the Closing, the Investor agrees to promptly notify Tailwind if any of the acknowledgments, understandings, agreements, representations or warranties set forth in Section 6 above are no longer accurate. The Investor acknowledges and agrees that each purchase by the Investor of the Shares from Tailwind will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein by the Investor as of the time of such purchase.
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d. Each of Tailwind, the Investor and the Placement Agent is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
e. All of the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
f. This Subscription Agreement may not be terminated other than pursuant to the terms of Section 8 above. The provisions of this Subscription Agreement may not be modified, amended or waived except by an instrument in writing, signed by each of the parties hereto; provided, however, that no modification, amendment or waiver by Tailwind of the provisions of this Subscription Agreement shall be effective without the prior written consent of the Company (other than modifications, amendments or waivers that are solely ministerial in nature or otherwise immaterial and, in each case, do not affect any economic or any other material term of this Subscription Agreement). No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.
g. This Subscription Agreement (including, without limitation, the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as set forth in Section 7(g), Section 8, Section 10(c), and Section 10(d) with respect to the persons specifically referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.
h. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
i. If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
j. This Subscription Agreement may be executed in one or more counterparts (including, without limitation, by facsimile or any other form of electronic delivery including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or other transmission method) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
k. The parties hereto acknowledge and agree that irreparable damage would occur if any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (i) the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise, and (ii) the parties shall not assert that a remedy of specific enforcement pursuant to this Section 10(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason.
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l. Any notice or communication required or permitted hereunder to be given to the Investor shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, to such address(es) or email address(es) set forth on the signature page hereto, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business days after the date of mailing to the address below or to such other address or addresses as the Investor may hereafter designate by notice to Tailwind.
m. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF) AS TO ALL MATTERS (INCLUDING ANY ACTION, SUIT, LITIGATION, ARBITRATION, MEDIATION, CLAIM, CHARGE, COMPLAINT, INQUIRY, PROCEEDING, HEARING, AUDIT, INVESTIGATION OR REVIEWS BY OR BEFORE ANY GOVERNMENTAL ENTITY RELATED HERETO), INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE CHANCERY COURT OF THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 10(l) OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10(m).
Confidential
11. Non-Reliance and Exculpation. The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Placement Agent, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the statements, representations and warranties of Tailwind expressly contained in this Subscription Agreement, in making its investment or decision to invest in Tailwind. The Investor acknowledges and agrees that none of (i) any other investor pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares (including the investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), (ii) the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, or (iii) any party to the Transaction Agreement (other than Tailwind) or any Non-Party Affiliate of the Company or the Placement Agent, shall have any liability to the Investor, or to any other investor, pursuant to, arising out of or relating to this Subscription Agreement or any other subscription agreement related to the private placement of the Shares, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by Tailwind, the Company, the Placement Agent or any Non-Party Affiliate concerning Tailwind, the Company, the Placement Agent, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of Tailwind, the Company, the Placement Agent or any of Tailwind’s, the Company’s or the Placement Agent’s controlled affiliates or any family member of the foregoing.
12. Disclosure. Tailwind shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements, the Transaction and any other material, nonpublic information that Tailwind has provided to the Investor at any time prior to the filing of the Disclosure Document (except as otherwise agreed to in writing by the Investor and Tailwind). Upon the issuance of the Disclosure Document, to the knowledge of Tailwind, the Investor shall not be in possession of any material, non-public information received from Tailwind or any of its officers, directors, or employees or agents, and the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with Tailwind or any of its affiliates, relating to the transactions contemplated by this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, Tailwind shall not, and shall cause its representatives, including the Placement Agent and its respective representatives, to not publicly disclose the name of Investor or any of its advisors or affiliates, or include the name of Investor or any of its advisors or affiliates without prior written consent of Investor, (i) in any press release or marketing materials, or for any similar or related purpose, or (ii) in any filing with the SEC or any regulatory agency or trading market, except as required by the federal securities law in connection with the Registration Statement, the filing of a form of this Subscription Agreement with the SEC and in the related Current Report on Form 8-K in a manner acceptable to Investor, and to the extent such disclosure is required by law, at the request of the Staff of the SEC or regulatory agency or under the regulations of the Stock Exchange, in which case Tailwind shall provide Investor with prior written notice of such disclosure permitted under this sub-clause (ii).
[SIGNATURE PAGES FOLLOW]
Confidential
IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.
Name of Investor: | State/Country of Formation or Domicile: | |||
By: | ||||
Name: | ||||
Title: | ||||
Name in which Shares are to be registered (if different): | Date: ________, 2021 | |||
Investor’s EIN: | ||||
Business Address-Street: | Mailing Address-Street (if different): | |||
City, State, Zip: | City, State, Zip: | |||
Attn: | Attn: | |||
Telephone No.: | Telephone No.: | |||
Facsimile No.: | Facsimile No.: | |||
Number of Shares subscribed for: | ||||
Aggregate Subscription Amount: $ | Price Per Share: $10.00 |
You must pay the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account specified by Tailwind in the Closing Notice. To the extent the offering is oversubscribed, the number of Shares received may be less than the number of Shares subscribed for.
Confidential
IN WITNESS WHEREOF, Tailwind has accepted this Subscription Agreement as of the date set forth below.
TAILWIND ACQUISITION CORP. | ||
By: | ||
Name: | ||
Title: |
Date: , 2021
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE INVESTOR
A. | QUALIFIED INSTITUTIONAL BUYER STATUS |
(Please check the applicable subparagraphs): |
☐ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (a “QIB”)).
B. | INSTITUTIONAL ACCREDITED INVESTOR STATUS |
(Please check the applicable subparagraphs): |
1. | ¨ We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
2. | ¨ We are not a natural person. |
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”
¨ Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;
¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
¨ Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;
¨ Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
¨ Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, partnership or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
¨ Any trust with assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person; or
¨ Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.
¨ An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000.
This page should be completed by the Investor
and constitutes a part of the Subscription Agreement.
Exhibit 10.4
SUBSCRIPTION AGREEMENT
Tailwind Acquisition Corp.
1545 Courtney Avenue
Los Angeles, CA 90046
Ladies and Gentlemen:
This Subscription Agreement (this “Subscription Agreement”) is being entered into as of the date set forth on the signature page hereto, by and between Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), and the undersigned subscriber (the “Investor”), in connection with the Business Combination Agreement, dated as of the date hereof (as may be amended, supplemented or otherwise modified from time to time, the “Transaction Agreement”), by and among Tailwind, Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), QOMPLX, Inc., a Delaware corporation (the “Company”), and Rationem, LLC, in its capacity as representative of the Company Stockholders, pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, becoming a wholly-owned subsidiary of Tailwind, on the terms and subject to the conditions set forth in the Transaction Agreement (such merger, the “Transaction”).
In connection with the Transaction, Tailwind is seeking commitments from interested investors to purchase, prior to the closing of the Transaction, shares of Tailwind’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), in a private placement for a purchase price of $10.00 per share (the “Per Share Purchase Price”). On or about the date of this Subscription Agreement, Tailwind is entering into subscription agreements (the “Other Subscription Agreements”, and together with the Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Investors”, and together with the Investor, the “PIPE Investors”), severally and not jointly, pursuant to which the PIPE Investors, severally and not jointly, have agreed to purchase on the closing date of the Transaction, inclusive of the shares of Class A Common Stock subscribed for by the Investor (the “Shares”), an aggregate amount of up to 18,000,000 shares of Class A Common Stock at the Per Share Purchase Price (the “PIPE Financing”), which amount includes 2,000,000 shares of Class A Common Stock to be issued to certain investors pursuant to the Convertible Note Purchase Agreement (as defined below) in respect of the aggregate principal amount of the Notes (as defined in the Convertible Note Purchase Agreement) held by such investors, on the terms and subject to the conditions set forth therein. An additional 835,539 shares of Class A Common Stock (the “Additional Shares”) have been committed to the Investor in exchange for its agreement to act as the lead investor in the PIPE Financing and commit to $50,000,000 of the aggregate PIPE Financing amount. The aggregate purchase price to be paid by the Investor for the subscribed Shares (as set forth on the signature page hereto) is referred to herein as the “Subscription Amount”.
In connection therewith, and in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, set forth herein, and intending to be legally bound hereby, each of the Investor and Tailwind acknowledges and agrees as follows:
1. Subscription. (a) The Investor subscribes for and agrees to purchase from Tailwind, and Tailwind agrees to issue and sell to the Investor, the number of Shares set forth on the signature page of this Subscription Agreement and (b) in addition to the Shares set forth on the signature page to this Subscription Agreement, Tailwind hereby agrees to issue to the Investor the Additional Shares, in each case, on the terms and subject to the conditions set forth in this Subscription Agreement(such Additional Shares, together with the Shares, the “Allocated Shares”).
2. Closing. The closing of the sale, purchase and issuance of the Allocated Shares contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transaction and satisfaction of the other conditions set forth in Section 3 hereof. The Closing shall occur on the date of, and immediately prior to, the effectiveness of the Transaction (the date the Closing so occurs, the “Closing Date”). Upon delivery of written notice from (or on behalf of) Tailwind to the Investor (the “Closing Notice”), that Tailwind reasonably expects all conditions to the closing of the Transaction under the Transaction Agreement to be satisfied or waived on a date that is not less than five (5) business days from the date on which the Closing Notice is delivered to the Investor, the Investor shall deliver to Tailwind, two (2) business days prior to the anticipated closing date specified in the Closing Notice, the Subscription Amount by wire transfer of United States dollars in immediately available funds to the account(s) specified by Tailwind in the Closing Notice (which account shall not be an escrow account). On the Closing Date, Tailwind shall issue (a) a number of Shares to the Investor set forth on the signature page to this Subscription Agreement and (b) the Additional Shares to the Investor, and, in each case, subsequently cause such Allocated Shares to be registered in book entry form, free and clear of any liens or other restrictions (other than those arising under this Subscription Agreement, the organizational documents of Tailwind, or applicable securities law), in the name of the Investor (or its nominee in accordance with its delivery instructions) and as promptly as practicable after the Closing on and as of the Closing Date; provided, however, that Tailwind’s obligation to issue the Allocated Shares to the Investor is contingent upon Tailwind having received the Subscription Amount in full accordance with this Section 2. In the event that the consummation of the Transaction does not occur within one (1) business day after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by Tailwind and the Investor, Tailwind shall promptly (but in no event later than two (2) business days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by the Investor to Tailwind by wire transfer in immediately available funds to the account specified by the Investor, and any book entries representing the Allocated Shares shall be deemed cancelled. For purposes of this Subscription Agreement, “business day” shall mean a day, other than a Saturday or Sunday, on which commercial banks in New York, New York and Los Angeles, California are open for the general transaction of business.
3. Closing Conditions.
a. The obligation of the parties hereto to consummate the sale, purchase and issuance of the Allocated Shares pursuant to this Subscription Agreement is subject to the following conditions:
(i) no applicable governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby; and
(ii) all conditions precedent to the closing of the Transaction set forth in Article 6 of the Transaction Agreement shall have been satisfied (which shall be deemed satisfied if mutually determined by the parties to the Transaction Agreement and other than those conditions under the Transaction Agreement that, by their nature are to be satisfied in connection with the closing of the Transaction, including to the extent that any such condition is dependent upon the consummation of the sale, purchase and issuance of the Allocated Shares pursuant to this Subscription Agreement or the Other Subscription Agreements) or waived by the parties to the Transaction Agreement as provided therein.
b. The obligation of Tailwind to consummate the sale and issuance of the Shares pursuant to this Subscription Agreement shall be subject to the condition (which may be waived in writing by Tailwind) that all representations and warranties of the Investor contained in this Subscription Agreement are true and correct in all material respects at and as of the Closing Date (except for those representations and warranties that speak as of a specified earlier date, which shall be so true and correct in all material respects as of such specified earlier date), and consummation of the Closing shall constitute a reaffirmation by the Investor of each of the representations and warranties of the Investor contained in this Subscription Agreement in all material respects as of the Closing Date (except those that speak as of a specified earlier date).
c. The obligation of the Investor to consummate the purchase of the Shares pursuant to this Subscription Agreement shall be subject to the following conditions (which may be waived in writing by the Investor):
i. | that all representations and warranties of Tailwind contained in this Subscription Agreement shall be true and correct in all material respects at and as of the Closing Date (except for (A) those representations and warranties qualified by materiality, Material Adverse Effect (as defined below) or similar qualification, which shall be true and correct in all respects as of the Closing Date and (B) those representations and warranties that speak as of a specified earlier date, in which case as of such specified earlier date), and consummation of the Closing shall constitute a reaffirmation by Tailwind of each of the representations and warranties of Tailwind contained in this Subscription Agreement in all material respects as of the Closing Date (except those that speak as of a specified earlier date); |
ii. | Tailwind shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to Closing; and |
iii. | the Transaction Agreement (as the same exists on the date of this Subscription Agreement) shall not have been amended or modified, and no waiver shall have occurred thereunder, that would materially adversely affect the economic benefits that the Investor would reasonably expect to receive under this Subscription Agreement without the Investor’s prior written consent. |
4. Further Assurances. At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription as contemplated by this Subscription Agreement.
5. Tailwind Representations and Warranties. Tailwind represents and warrants to the Investor that:
a. Tailwind is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Tailwind has all corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
b. As of the Closing Date, the Allocated Shares will be duly authorized and, when issued and delivered to the Investor against full payment therefor in accordance with the terms of this Subscription Agreement, the Allocated Shares will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement, the organizational documents of Tailwind or applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under Tailwind’s organizational documents (as amended on or prior to the Closing Date) or under the General Corporation Law of the State of Delaware or any similar rights pursuant to any agreement or other instrument to which Tailwind is a party or by which it is otherwise bound.
c. The execution, delivery and performance by Tailwind of this Subscription Agreement are within the powers of Tailwind and have been duly authorized, validly executed and delivered by Tailwind and, assuming that this Subscription Agreement constitutes the valid and binding agreement of the Investor, this Subscription Agreement constitutes a valid and binding agreement of Tailwind and is enforceable against Tailwind in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.
d. The execution, delivery and performance of this Subscription Agreement, including the sale and issuance of the Allocated Shares hereunder, and the compliance by Tailwind with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Tailwind or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Tailwind or any of its subsidiaries is a party or by which Tailwind or any of its subsidiaries is bound or to which any of the property or assets of Tailwind is subject that would reasonably be expected to have a material adverse effect on the business, financial condition, stockholders’ equity or results of operations of Tailwind and its subsidiaries, taken as a whole or on the validity of the Allocated Shares or the legal authority of Tailwind to comply in all material respects with the terms of this Subscription Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of Tailwind; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Tailwind or any of its properties or assets that would reasonably be expected to have a material adverse effect on Tailwind or materially affect the validity of the Allocated Shares or the legal authority of Tailwind to comply in all material respects with the Subscription Agreement.
e. As of their respective dates, all reports and filings (the “SEC Reports”) required to be filed by Tailwind with the U.S. Securities and Exchange Commission (the “SEC”) complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended, (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of Tailwind included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of Tailwind as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Investor via the SEC’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by Tailwind from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports.
f. Tailwind is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by Tailwind of this Subscription Agreement (including, without limitation, the issuance of the Allocated Shares), other than filings (i) with the SEC, (ii) required by applicable state securities laws, (iii) required by the New York Stock Exchange, or such other applicable stock exchange on which Tailwind’s common equity is then listed (the “Stock Exchange”), and (iv) the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
g. As of the date hereof, the authorized capital stock of Tailwind consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 550,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (1) 500,000,000 shares of Class A Common Stock and (2) 50,000,000 shares of Class B Common Stock, par value $0.0001 (“Class B Common Stock”). As of the date hereof, (i) no shares of Preferred Stock are issued and outstanding, (ii) 33,421,570 shares of Class A Common Stock are issued and outstanding, (iii) 8,355,393 shares of Class B Common Stock are issued and outstanding and (iv) 16,710,785 redeemable warrants and 9,700,000 private placement warrants are outstanding. All (i) issued and outstanding shares of Class A Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding warrants have been duly authorized and validly issued. Except as set forth above and pursuant to the Other Subscription Agreements, the Transaction Agreement and the other agreements and arrangements referred to therein or in the SEC Reports, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from Tailwind any shares of Common Stock or other equity interests in Tailwind, or securities convertible into or exchangeable or exercisable for such equity interests. There are no securities or instruments issued by or to which Tailwind is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares hereunder, (ii) the shares of Class A Common Stock to be issued pursuant to any Other Subscription Agreement, or (iii) the Additional Shares that have not been or will not be validly waived on or prior to the Closing Date, including such provisions in the Class B Common Stock pursuant to the terms of Tailwind’s certificate of incorporation.
h. The issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange. As of the date hereof, there is no suit, action, proceeding or investigation pending or, to the knowledge of Tailwind, threatened against Tailwind by the Stock Exchange or the SEC, respectively, to prohibit or terminate the listing of the Class A Common Stock, or to deregister the Class A Common Stock under the Exchange Act. Tailwind has taken no action that is designed to terminate the registration of the Class A Common Stock under the Exchange Act. At Closing, the Allocated Shares acquired hereunder will be approved for listing on the Stock Exchange, subject to official notice of issuance.
i. Assuming the accuracy of the Investor’s representations and warranties set forth in Section 6, no registration under the Securities Act is required for the offer and sale of the Allocated Shares by Tailwind to the Investor hereunder. The Allocated Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Neither Tailwind, nor any person acting on its behalf, has, directly or indirectly, made any offers or sales of any Tailwind security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by Tailwind on an exemption from registration for the transactions contemplated hereby or would require registration of the Allocated Shares under the Securities Act.
j. Other than the Placement Agent (as defined below), whose costs and expenses shall be borne solely by Tailwind, Tailwind has not engaged any broker, finder, commission agent, placement agent or arranger in connection with the sale of the Allocated Shares, and Tailwind is not under any obligation to pay any broker’s fee or commission in connection with the sale of the Allocated Shares other than to the Placement Agent.
k. Tailwind is not, and immediately after receipt of payment for the Allocated Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
l. Other than with respect to the Other Subscription Agreements, the Transaction Agreement and any other agreement contemplated by the Transaction Agreement, Tailwind has not entered into any side letter or similar agreement with any Other Investor or any other investor in connection with such Other Investor’s or investor’s direct or indirect investment in Tailwind (other than any side letter or similar agreement relating to the transfer to any investor of (i) securities of Tailwind by existing securityholders of Tailwind, which may be effectuated as a forfeiture to Tailwind and reissuance, or (ii) securities to be issued to the direct or indirect securityholders of the Company pursuant to the Transaction Agreement). No Other Subscription Agreement includes terms and conditions that are materially more advantageous to any such Other Investor than the Investor hereunder, and such Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement.
m. Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or material adverse effect on Tailwind, as of the date hereof, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of Tailwind, threatened against Tailwind or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against Tailwind.
6. Investor Representations and Warranties. The Investor represents and warrants to Tailwind that:
a. The Investor (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Allocated Shares only for its own account and not for the account of others, or if the Investor is subscribing for the Allocated Shares as a fiduciary or agent for one or more investor accounts, the Investor has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Allocated Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A).
b. The Investor acknowledges and agrees that the Allocated Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Allocated Shares have not been registered under the Securities Act. The Investor acknowledges and agrees that the Allocated Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor absent an effective registration statement under the Securities Act except (i) to Tailwind or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of clauses (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Allocated Shares shall contain a restrictive legend to such effect. The Investor acknowledges and agrees that the Allocated Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Allocated Shares and may be required to bear the financial risk of an investment in the Allocated Shares for an indefinite period of time. The Investor acknowledges and agrees that the Allocated Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that Tailwind files a Current Report on Form 8-K following the Closing Date that includes the “Form 10” information required under applicable SEC rules and regulations. The Investor acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, transfer, pledge or disposition of any of the Allocated Shares.
c. The Investor acknowledges and agrees that the Investor is purchasing the Allocated Shares from Tailwind. The Investor further acknowledges that there have been no representations, warranties, covenants and agreements made to the Investor by or on behalf of Tailwind, the Company, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Tailwind expressly set forth in this Subscription Agreement.
d. The Investor’s acquisition and holding of the Allocated Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
e. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the Allocated Shares. Without limiting the generality of the foregoing, the Investor acknowledges that it has had the opportunity to review Tailwind’s filings with the SEC. The Investor acknowledges and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and such Investor’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Allocated Shares.
f. The Investor became aware of this offering of the Allocated Shares solely by means of direct contact between the Investor and Tailwind, the Company or a representative of Tailwind or the Company, and the Allocated Shares were offered to the Investor solely by direct contact between the Investor and Tailwind, the Company or a representative of Tailwind or the Company. The Investor did not become aware of this offering of the Allocated Shares, nor were the Allocated Shares offered to the Investor, by any other means. The Investor acknowledges that the Allocated Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, Tailwind, the Company, the Placement Agent, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties of Tailwind contained in this Subscription Agreement, in making its investment or decision to invest in Tailwind.
g. The Investor acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Allocated Shares, including, without limitation, those set forth in Tailwind’s filings with the SEC. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Allocated Shares, and the Investor has sought such accounting, legal and tax advice as the Investor has considered necessary to make an informed investment decision.
h. Alone, or together with any professional advisor(s), the Investor has adequately analyzed and fully considered the risks of an investment in the Allocated Shares and determined that the Allocated Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in Tailwind. The Investor acknowledges specifically that a possibility of total loss exists. The Investor will not look to the Placement Agent for all or part of any such loss or losses the Investor may suffer, and is able to sustain a complete loss on its investment in the Allocated Shares.
i. In making its decision to purchase the Shares, the Investor has relied solely upon independent investigation made by the Investor. Without limiting the generality of the foregoing, the Investor has not relied on any statements or other information provided by or on behalf of the Placement Agent or any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing concerning Tailwind, the Company, the Transaction, the Transaction Agreement, this Subscription Agreement or the transactions contemplated hereby or thereby, the Allocated Shares or the offer and sale of the Allocated Shares.
j. The Investor acknowledges that the Placement Agent (i) has not provided the Investor with any information or advice with respect to the Allocated Shares, (ii) has not made any representation, express or implied as to Tailwind, the Company, the Company’s credit quality, the Allocated Shares or the Investor’s purchase of the Allocated Shares, (iii) has not acted as the Investor’s financial advisor or fiduciary in connection with the issue and purchase of Allocated Shares, and (iv) may have acquired, or may acquire, non-public information with respect to the Company, which the Investor agrees need not be provided to it.
k. The Investor acknowledges that it has not relied on the Placement Agent in connection with its determination as to the legality of its acquisition of the Allocated Shares or as to the other matters referred to herein and the Investor has not relied on any investigation that the Placement Agent, any of its affiliates or any person acting on its behalf have conducted with respect to the Allocated Shares, Tailwind or the Company. The Investor further acknowledges that it has not relied on any information contained in any research reports prepared by the Placement Agent or any of its affiliates.
l. The Investor acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Allocated Shares or made any findings or determination as to the fairness of this investment.
m. The Investor, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
n. The execution, delivery and performance by the Investor of this Subscription Agreement are within the powers of the Investor, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which the Investor is a party or by which the Investor is bound, and, if the Investor is not an individual, will not conflict with or violate any provisions of the Investor’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Subscription Agreement is genuine, and the signatory, if the Investor is an individual, has legal competence and capacity to execute the same or, if the Investor is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Subscription Agreement constitutes the valid and binding agreement of Tailwind, this Subscription Agreement has been duly executed and delivered by the Investor and constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
o. The Investor is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Investor agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Investor is permitted to do so under applicable law. If the Investor is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Investor maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC List. To the extent required by applicable law, the Investor maintains policies and procedures reasonably designed to ensure that the funds held by the Investor and used to purchase the Shares were legally derived.
p. The Investor acknowledges that no disclosure or offering document has been delivered to it by Jefferies LLC or any of its affiliates (the “Placement Agent”) in connection with the offer and sale of the Allocated Shares.
q. The Investor acknowledges that neither the Placement Agent, nor any of its affiliates nor any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing have made any independent investigation with respect to Tailwind, the Company or its subsidiaries or any of their respective businesses, or the Allocated Shares or the accuracy, completeness or adequacy of any information supplied to the Investor by Tailwind.
r. The Investor acknowledges that in connection with the issue and purchase of the Allocated Shares, the Placement Agent has not acted as the Investor’s financial advisor or fiduciary.
s. When required to deliver payment to Tailwind pursuant to Section 2 above, the Investor will have sufficient funds to pay the Subscription Amount pursuant to this Subscription Agreement.
t. The Investor does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Investor has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of Tailwind. Notwithstanding the foregoing, (i) in the case of an Investor that has other entities under common management with Investor that have no knowledge of this Subscription Agreement or of Investor’s participation in the Transaction (including Investor’s affiliates), the representation set forth above shall not apply to such other entities and (ii) in the case of an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Allocated Shares.
7. Registration Rights.
a. In the event that the Allocated Shares are not registered in connection with the consummation of the Transaction, Tailwind agrees that, within thirty (30) calendar days after the consummation of the Transaction, it will file with the SEC (at its sole cost and expense) a registration statement registering the resale of the Allocated Shares (the “Registration Statement”), and it shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) sixty (60) calendar days after the filing thereof (or ninety (90) calendar days after the filing thereof if the SEC notifies Tailwind that it will “review” the Registration Statement) and (ii) ten (10) business days after Tailwind is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review. Tailwind will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Investor for review (but not comment) at least two (2) business days in advance of filing the Registration Statement. Unless otherwise agreed to in writing by the Investor, the Investor shall not be identified as a statutory underwriter in the Registration Statement unless requested or required by statute, regulation or exchange rules; provided, that if the SEC requests that the Investor be identified as a statutory underwriter in the Registration Statement, the Investor will have the opportunity to withdraw from the Registration Statement. Notwithstanding the foregoing, if the SEC prevents Tailwind from including any or all of the shares of Class A Common Stock proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act or otherwise, such Registration Statement shall register for resale such number of shares of Class A Common Stock which is equal to the maximum number of shares of Class A Common Stock as is permitted by the SEC. In such event, the number of shares of Class A Common Stock to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares of Class A Common Stock under Rule 415 under the Securities Act, Tailwind shall file a new Registration Statement to register such shares of Class A Common Stock not included in the initial Registration Statement and cause such Registration Statement to become effective as promptly as practicable. Tailwind agrees to cause such Registration Statement, or another shelf registration statement that includes the Allocated Shares, to remain effective until the earliest of (i) the third anniversary of the Closing, (ii) the date on which the Investor ceases to hold any Allocated Shares, or (iii) the first date on which the Investor is able to sell all of its Allocated Shares (or shares received in exchange therefor) without restriction under Rule 144 of the Securities Act, including without limitation as to any volume and manner of sale restrictions and without the requirement that Tailwind be in compliance with the public information requirements of Rule 144(c) or Rule 144(i), as applicable. The Investor agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, to Tailwind upon request to assist Tailwind in making the determination described above. Tailwind may amend the Registration Statement so as to convert the Registration Statement to a Registration Statement on Form S-3 at such time after Tailwind becomes eligible to use such Form S-3.
b. Notwithstanding anything to the contrary contained herein, Tailwind may, upon written notice to the Investor, delay or postpone filing of such Registration Statement, and from time to time require Investor not to sell under the Registration Statement or suspend the use of any such Registration Statement if it determines that in order for the Registration Statement to not contain a material misstatement or material omission, an amendment or supplement thereto would be needed, or if such filing or use would reasonably be expected to materially and adversely affect a bona fide business or financing transaction being pursued by Tailwind or would require premature disclosure of information that would reasonably be expected to materially and adversely affect Tailwind (each such circumstance, a “Suspension Event”); provided that (w) Tailwind shall not so delay filing or so suspend the use of the Registration Statement on more than three (3) occasions or for more than one-hundred twenty (120) total days in any three hundred sixty (360) day period or, on any occasion, for a period of more than sixty (60) consecutive days and (x) Tailwind shall use commercially reasonable efforts to make such Registration Statement available for the sale by the Investor of such securities as soon as practicable thereafter. Upon receipt of any such written notice from Tailwind (which notice shall not contain any material non-public information regarding Tailwind) of the occurrence of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, the Investor agrees that (i) it will immediately discontinue offers and sales of Allocated Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Investor receives copies of a supplemental or amended prospectus (which Tailwind agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and the Investor receives notice that any post-effective amendment has become effective or unless otherwise notified by Tailwind that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by Tailwind unless otherwise required by law, subpoena, regulatory request or requirement, or legal proceeding. If so directed by Tailwind, the Investor will deliver to Tailwind, or in the Investor’s sole discretion destroy, all copies of the prospectus covering the Allocated Shares in the Investor’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Allocated Shares shall not apply (w) to the extent the Investor is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.
c. Tailwind will file all reports, and provide all customary and reasonable cooperation, necessary to enable the Investor to resell the Allocated Shares pursuant to the Registration Statement (for as long as the Registration Statement shall remain effective) or Rule 144 of the Securities Act (when Rule 144 of the Securities Act becomes available to the Investor), as applicable, qualify the Allocated Shares for listing on the applicable stock exchange on which the Class A Common Stock is then listed, and update or amend the Registration Statement as necessary to include the Allocated Shares. Tailwind agrees, for as long as the Investor holds Allocated Shares, to file with the SEC in a timely manner all reports and other documents required of Tailwind under the Securities Act and the Exchange Act so long as Tailwind remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; make and keep public information available, as those terms are understood and defined in Rule 144; and furnish to the Investor so long as it owns Allocated Shares, promptly upon request, (x) a written statement by Tailwind, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of Tailwind and such other reports and documents so filed by Tailwind (public availability on the SEC’s EDGAR system (or successor system) being sufficient) and (z) such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration. If requested by the Investor, Tailwind shall (i) cause the removal of the restrictive legends from any Allocated Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Allocated Shares and, at the request of a Holder (as defined below), cause the removal of all restrictive legends from any Allocated Shares held by such Holder that may be sold by such Holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (ii) cause its legal counsel to deliver an opinion, if necessary, to the transfer agent in connection with the instruction under subclause (i) to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, in each case upon the receipt of customary representations and other documentation, if any, from the Holder as reasonably requested by Tailwind, its counsel or the transfer agent, establishing that restrictive legends are no longer required. “Holder” shall mean the Investor or any affiliate of the Investor to which the rights under this Section 7 shall have been assigned.
d. Tailwind’s obligations to include the Allocated Shares (or shares issued in exchange therefor) for resale in the Registration Statement are contingent upon the Investor furnishing in writing to Tailwind such information required by SEC rules for the Registration Statement regarding the Investor, the securities of Tailwind held by the Investor and the intended method of disposition of such Allocated Shares, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by Tailwind to effect the registration of such Allocated Shares, and shall execute such documents in connection with such registration as Tailwind may reasonably request that are customary of a selling stockholder in similar situations; provided that the Investor shall not be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restrictions on the ability to transfer the Allocated Shares.
e. Tailwind shall advise the Investor as expeditiously as possible, but in any event within five (5) business days:
(i) when a Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information concerning the Investor;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(iv) of the receipt by Tailwind of any notification with respect to the suspension of the qualification of the Allocated Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(v) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, Tailwind shall not, when so advising the Investor of such events, provide the Investor with any material, nonpublic information regarding Tailwind other than to the extent that providing notice to the Investor of the occurrence of the events listed in (i) through (v) above constitutes material, nonpublic information regarding Tailwind.
f. Tailwind shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable. Upon the occurrence of any event contemplated in Section 7(e)(v), except for such times as Tailwind is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Subscription Agreement, Tailwind shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Allocated Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
g. Indemnification.
(i) Tailwind shall indemnify and hold harmless the Investor (to the extent a seller under the Registration Statement), the officers, directors, advisors and employees of the Investor, each person who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”) that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding the Investor furnished in writing to Tailwind by the Investor expressly for use therein or that the Investor has omitted a material fact from such information. Notwithstanding the foregoing, Tailwind’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Tailwind (which consent shall not be unreasonably withheld or delayed).
(ii) The Investor shall, severally and not jointly with any Other Investor in the offering contemplated by this Subscription Agreement, indemnify and hold harmless Tailwind, its directors, officers and employees, each person who controls Tailwind (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and the directors, officers, advisors and employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding the Investor furnished in writing to Tailwind by the Investor expressly for use therein. In no event shall the liability of the Investor be greater in amount than the dollar amount of the net proceeds received by the Investor upon the sale of Allocated Shares giving rise to such indemnification obligation. Notwithstanding the foregoing, the Investor’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of the Investor (which consent shall not be unreasonably withheld or delayed).
(iii) Any person or entity entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(iv) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person or entity of such indemnified party and shall survive the transfer of securities.
(v) If the indemnification provided under this Section 7(g) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, the liability of the Investor shall be limited to the net proceeds received by the Investor from the sale of Allocated Shares giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in this Section 7, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 7(g) from any person or entity who was not guilty of such fraudulent misrepresentation.
8. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Transaction Agreement is terminated in accordance with its terms, (b) upon the mutual written agreement of each of the parties hereto and the Company to terminate this Subscription Agreement, and (c) the delivery of a notice of termination of this Subscription Agreement by the Investor to Tailwind following the date that is thirty (30) calendar days after the Termination Date (as defined in the Transaction Agreement, as in effect as of the date hereof, the “Outside Date”), if the Closing has not occurred by the Outside Date (the termination events described in clauses (a)–(c) above, collectively, the “Termination Events”); provided that nothing herein will relieve any party from liability for any fraud or willful and material breach of any covenant, agreement, obligation, representation or warranty hereunder prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such fraud or willful and material breach. Tailwind shall notify the Investor in writing of the termination of the Transaction Agreement as promptly as practicable after the termination of the Transaction Agreement. Upon the occurrence of any Termination Event, any monies paid by the Investor to Tailwind in connection herewith, shall promptly (and in any event within one business day) following the Termination Event be returned to the Investor.
9. Trust Account Waiver. The Investor acknowledges that Tailwind is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving Tailwind and one or more businesses or assets. The Investor further acknowledges that, as described in Tailwind’s prospectus relating to its initial public offering dated September 3, 2020 (the “Prospectus”) available at www.sec.gov, substantially all of Tailwind’s assets consist of the cash proceeds of Tailwind’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of Tailwind, its public shareholders and the underwriters of Tailwind’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to Tailwind to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of Tailwind entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement or the transactions contemplated hereby regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability; provided, however, that nothing in this Section 9 shall be deemed to limit the Investor’s right, title, interest or claim to any monies held in the Trust Account by virtue of its record or beneficial ownership of Class A Common Stock currently outstanding on the date hereof, pursuant to a validly exercised redemption right with respect to any such Class A Common Stock, in accordance with Tailwind’s Amended and Restated Certificate of Incorporation and the Investment Management Trust Agreement between Continental Stock Transfer & Trust Company and Tailwind, dated September 9, 2020, except to the extent that the Investor has otherwise agreed with Tailwind, the Company or any of their respective affiliates in writing to not exercise such redemption right.
10. Miscellaneous.
a. Neither this Subscription Agreement nor any rights that may accrue to the Investor hereunder (other than the Allocated Shares acquired hereunder, if any) may be transferred or assigned; provided that the Investor may assign its rights hereunder to any fund or account managed by the same investment manager as the Investor, or an affiliate of the Investor, in each case without consent from Tailwind; provided that such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by an Investor, the assignee(s) shall become Investor hereunder and have the rights and obligations and be deemed to make the representations and warranties of the Investor provided for herein to the extent of such assignment; provided further that, no assignment shall relieve the assigning party of any of its obligations hereunder, including any assignment to any fund or account managed by the same investment manager as the Investor. Subject to the foregoing, this Subscription Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
b. Tailwind may request from the Investor such additional information as Tailwind may reasonably deem necessary or advisable to register the resale of the Allocated Shares and evaluate the eligibility of the Investor to acquire the Allocated Shares, and the Investor shall provide any such information as may reasonably be requested, provided that, Tailwind agrees to keep any such information provided by Investor confidential (except to the extent required to be disclosed by applicable law, including in connection with any filings required to be made with the SEC or the Stock Exchange, in which case Tailwind shall provide prior written notice to Investor of such disclosure). Without limiting the generality of the foregoing or any other covenants or agreements in this Subscription Agreement, the Investor acknowledges that Tailwind may file a copy of this Subscription Agreement with the SEC as an exhibit to a periodic report or a registration statement of Tailwind.
c. Each party acknowledges that the other party will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. The Investor acknowledges that the Placement Agent will rely on the representations and warranties of the Investor contained in this Subscription Agreement. Prior to the Closing, the Investor agrees to promptly notify Tailwind if any of the acknowledgments, understandings, agreements, representations or warranties set forth in Section 6 above are no longer accurate. The Investor acknowledges and agrees that each purchase by the Investor of the Allocated Shares from Tailwind will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein by the Investor as of the time of such purchase.
d. Each of Tailwind, the Investor and the Placement Agent is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
e. All of the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
f. This Subscription Agreement may not be terminated other than pursuant to the terms of Section 8 above. The provisions of this Subscription Agreement may not be modified, amended or waived except by an instrument in writing, signed by each of the parties hereto; provided, however, that no modification, amendment or waiver by Tailwind of the provisions of this Subscription Agreement shall be effective without the prior written consent of the Company (other than modifications, amendments or waivers that are solely ministerial in nature or otherwise immaterial and, in each case, do not affect any economic or any other material term of this Subscription Agreement). No failure or delay of either party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.
g. This Subscription Agreement (including, without limitation, the schedule hereto) constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as set forth in Section 7(g), Section 8, Section 10(c), and Section 10(d) with respect to the persons specifically referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.
h. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
i. If any provision of this Subscription Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
j. This Subscription Agreement may be executed in one or more counterparts (including, without limitation, by facsimile or any other form of electronic delivery including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or other transmission method) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
k. The parties hereto acknowledge and agree that irreparable damage would occur if any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (i) the parties shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise, and (ii) the parties shall not assert that a remedy of specific enforcement pursuant to this Section 10(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason.
l. Any notice or communication required or permitted hereunder to be given to the Investor shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, to such address(es) or email address(es) set forth on the signature page hereto, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, provided that a copy of such notice or communication is also sent to the Investor by overnight mail via a reputable overnight carrier or (iii) three (3) business days after the date of mailing to the address below or to such other address or addresses as the Investor may hereafter designate by notice to Tailwind.
m. THIS SUBSCRIPTION AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF) AS TO ALL MATTERS (INCLUDING ANY ACTION, SUIT, LITIGATION, ARBITRATION, MEDIATION, CLAIM, CHARGE, COMPLAINT, INQUIRY, PROCEEDING, HEARING, AUDIT, INVESTIGATION OR REVIEWS BY OR BEFORE ANY GOVERNMENTAL ENTITY RELATED HERETO), INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE CHANCERY COURT OF THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 10(l) OF THIS SUBSCRIPTION AGREEMENT OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10(m).
11. Non-Reliance and Exculpation. The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Placement Agent, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the statements, representations and warranties of Tailwind expressly contained in this Subscription Agreement, in making its investment or decision to invest in Tailwind. The Investor acknowledges and agrees that none of (i) any other investor pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of the Allocated Shares (including the investor’s respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), (ii) the Placement Agent, its affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, or (iii) any party to the Transaction Agreement (other than Tailwind) or any Non-Party Affiliate of the Company or the Placement Agent, shall have any liability to the Investor, or to any other investor, pursuant to, arising out of or relating to this Subscription Agreement or any other subscription agreement related to the private placement of the Allocated Shares, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Allocated Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Subscription Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by Tailwind, the Company, the Placement Agent or any Non-Party Affiliate concerning Tailwind, the Company, the Placement Agent, any of their controlled affiliates, this Subscription Agreement or the transactions contemplated hereby. For purposes of this Subscription Agreement, “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or affiliate of Tailwind, the Company, the Placement Agent or any of Tailwind’s, the Company’s or the Placement Agent’s controlled affiliates or any family member of the foregoing.
12. Disclosure. Tailwind shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements, the Transaction and any other material, nonpublic information that Tailwind has provided to the Investor at any time prior to the filing of the Disclosure Document (except as otherwise agreed to in writing by the Investor and Tailwind). Upon the issuance of the Disclosure Document, to the knowledge of Tailwind, the Investor shall not be in possession of any material, non-public information received from Tailwind or any of its officers, directors, or employees or agents, and the Investor shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with Tailwind or any of its affiliates, relating to the transactions contemplated by this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, Tailwind shall not, and shall cause its representatives, including the Placement Agent and its respective representatives, to not publicly disclose the name of Investor or any of its advisors or affiliates, or include the name of Investor or any of its advisors or affiliates without prior written consent of Investor, (i) in any press release or marketing materials, or for any similar or related purpose, or (ii) in any filing with the SEC or any regulatory agency or trading market, except as required by the federal securities law in connection with the Registration Statement, the filing of a form of this Subscription Agreement with the SEC and in the related Current Report on Form 8-K in a manner acceptable to Investor, and to the extent such disclosure is required by law, at the request of the Staff of the SEC or regulatory agency or under the regulations of the Stock Exchange, in which case Tailwind shall provide Investor with prior written notice of such disclosure permitted under this sub-clause (ii) and shall reasonably consult with Investor regarding such disclosure prior to any such disclosure.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Investor has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.
Name of Investor: Cannae Holdings LLC | State/Country of Formation or Domicile: | ||
By: | |||
Name: | |||
Title: |
Name in which Shares are to be registered (if different): | Date: _______, 2021 | |
Investor’s EIN: | ||
Business Address-Street: ________________ | Mailing Address-Street (if different): | |
City, State, Zip: | City, State, Zip: | |
Attn: ___________ | Attn:_____________________________________ | |
Telephone No.: 702.323.7334 | Telephone No.: | |
Facsimile No.: 702.243.3251 | Facsimile No.: | |
Number of Shares subscribed for: 3,750,000 | ||
Aggregate Subscription Amount: $ 37,500,000 | Price Per Share: $10.00 | |
IN WITNESS WHEREOF, Tailwind has accepted this Subscription Agreement as of the date set forth below.
TAILWIND ACQUISITION CORP. | ||
By: | ||
Name:d | ||
Title: |
Date: March __, 2021
[Signature Page to PIPE Subscription Agreement]
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE INVESTOR
A. QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the applicable subparagraphs):
¨ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (a “QIB”)).
B. INSTITUTIONAL ACCREDITED INVESTOR STATUS
(Please check the applicable subparagraphs):
1 ¨ | We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
2. ¨ | We are not a natural person. |
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Investor has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Investor and under which the Investor accordingly qualifies as an “accredited investor.”
¨ Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;
¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
¨ Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, savings and loan association, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;
¨ Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;
x Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, partnership or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
¨ Any trust with assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person; or
¨ Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.
¨ An entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000.
This page should
be completed by the Investor
and constitutes a part of the Subscription Agreement.
Exhibit 10.5
Execution Version
CONVERTIBLE NOTE PURCHASE AGREEMENT
This Convertible Note Purchase Agreement (this “Agreement”), dated as of March 1, 2021, is entered into among QOMPLX, Inc., a Delaware corporation (the “Company”), the persons and entities (each individually, a “Purchaser,” and collectively, the “Purchasers”) named on the Schedule of Purchasers attached hereto (the “Schedule of Purchasers”), and Tailwind Acquisition Corp., a Delaware corporation (“SPAC”).
WHEREAS, the Company wishes to issue and sell to each Purchaser, and each Purchaser wishes to purchase from the Company, a convertible promissory note in exchange for the cash purchase price set forth opposite each such Purchaser’s name on the Schedule of Purchasers (such cash purchase price opposite a Purchaser’s name, the “Consideration”, and the aggregate cash purchase price of all Purchasers, the “Aggregate Consideration”);
WHEREAS, this Agreement and the Notes are being entered into concurrently with the execution of that certain Business Combination Agreement, dated as of the date hereof, by and among SPAC, Compass Merger Sub, Inc., a Delaware corporation (“Merger Sub”), the Company, and Rationem, LLC, a Delaware limited liability company, in its capacity as the representative of the Company stockholders as set forth therein (the “Business Combination Agreement”); and
WHEREAS, each party hereto has agreed that SPAC will, subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, assume each Note and satisfy and discharge the principal amount (i.e., the Consideration) and accrued and unpaid interest under each Note as of such time by way of issuance to each Purchaser of a number of Conversion Shares based on the Conversion Rate, in each case, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms have the respective meanings set forth below. Capitalized terms not otherwise defined in this Agreement will have the meanings set forth in the Business Combination Agreement.
1.1 “Conversion Shares” means shares of Class A common stock, par value $0.0001 per share, of SPAC to be issued upon the conversion of the Notes pursuant to the terms of this Agreement.
1.2 “Conversion Rate” means, for every $10 of principal amount and accrued and unpaid interest payable on a Note at the time of conversion, one Conversion Share. If any change in the number, type or classes of authorized shares of SPAC (including the Conversion Shares), other than as contemplated by the Business Combination Agreement or any agreement contemplated by the Business Combination Agreement, shall occur between the date hereof and immediately prior to the Closing under the Business Combination Agreement by reason of reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the Conversion Rate shall be appropriately adjusted to reflect such change.
1.3 “Maturity Date” means, with respect to each Note issued under this Agreement, the date that is twelve (12) months following the date of issuance of such Note.
1.4 “Non-Party Affiliates” means each former, current or future officer, director, employee, partner, member, manager, direct or indirect equityholder or Affiliate of SPAC or the Company or any Representative or family member of any of the foregoing Persons.
1.5 “Notes” means the one or more promissory notes issued to each Purchaser pursuant to Section 2, the form of which is attached hereto as Exhibit A.
1.6 “Requisite Noteholders” means the holders of 50% of the aggregate principal amount of the Notes.
1.7 “Securities” means, collectively, the Notes and any Conversion Shares that may be issued in respect thereof.
1.8 “Securities Act” means the Securities Act of 1933, as amended.
1.9 “Transfer” means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest in or disposition or encumbrance of an interest (in each case, whether direct or indirect, whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise).
2. Purchase and Sale of Notes. In exchange for the Consideration paid by each Purchaser, the Company will sell and issue to each such Purchaser a Note. Each Note will have a principal amount equal to the Consideration paid by the applicable Purchaser for such Note, as set forth opposite such Purchaser’s name on the Schedule of Purchasers; provided, that the Aggregate Consideration shall in no event exceed $20,000,000.
3. Closings. The closing of the sale of the Notes in exchange for the Consideration paid by each Purchaser (the “Closing”) will take place remotely via the electronic exchange of documents and signatures on the date of this Agreement, or at such other time and place as the Company, SPAC and the Purchasers purchasing a majority-in-interest of the aggregate principal amount of the Notes to be sold at the Closing agree upon orally or in writing. At the Closing, each Purchaser will deliver the Consideration to the Company by wire transfer of immediately available funds and the Company will, in exchange therefor, deliver to each such Purchaser a Note in return for the Consideration provided to the Company. On the date of the Closing, the Company will provide SPAC with evidence reasonably satisfactory to SPAC that the Aggregate Consideration has been received by the Company from the Purchasers in cash (and without, for the avoidance of doubt, any offset, setoff or similar net funding concept).
4. Conversion. Each Note will be convertible into Conversion Shares pursuant to, and only in the circumstances specifically provided for in, this Section 4 as follows.
4.1 Mandatory Conversion. Subject to, and conditioned upon the occurrence of, and effective as of immediately prior to, the Effective Time, SPAC will be deemed to automatically assume each Note and the outstanding principal amount and all accrued and unpaid interest under each Note will automatically be converted into a number of Conversion Shares (rounded down to the nearest whole number) based on the Conversion Rate. Upon the conversion of the principal amount and accrued and unpaid interest under a Note as provided in preceding sentence, all outstanding amounts under such Note will automatically be deemed satisfied and discharged in full, and such Note will be no longer outstanding and will be cancelled, extinguished and retired and the holder thereof will cease to have any rights with respect thereto, except for the express rights with respect to the Conversion Shares contemplated by this Agreement.
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4.2 Mechanics of Conversion. As promptly as practicable after the conversion of each Note and the issuance of the Conversion Shares in connection with, and for the avoidance of doubt subject to, the Effective Time, SPAC will provide evidence of the issuance to each Purchaser of the Conversion Shares in book entry form in the name of such Purchaser on SPAC’s share register; provided, that, as a condition to receipt of such evidence of issuance and without affecting, modifying or otherwise limiting the cancellation, extinguishment and retirement of, or the satisfaction and discharge of all amounts outstanding under, a Note as provided in Section 4.1, each Purchaser shall surrender the Note held by such Purchaser to SPAC (or provide an instrument of cancellation or affidavit of loss). Any Conversion Shares issued upon the conversion of any applicable Note shall have associated with such Conversion Shares one or more legends restricting the transfer of such Conversion Shares consistent with the legend set forth in Section 9.11(b).
For the avoidance of doubt, if the Business Combination Agreement is terminated in accordance with its terms, each Note will not be convertible into Conversion Shares pursuant to this Section 4 or otherwise and, as more fully provided in Section 9.13, SPAC shall have no further obligations or Liabilities under, or with respect to, this Agreement or any of the Notes.
5. Representations and Warranties of the Company. In connection with the transactions contemplated by this Agreement, the Company hereby represents and warrants to the Purchasers as follows:
5.1 Due Organization; Qualification and Good Standing. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify or to be in good standing would have a material adverse effect on the Company.
5.2 Authorization and Enforceability. Except for the authorization and issuance of the Conversion Shares, all corporate action has been taken on the part of the Company and its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement and the Notes. Except as may be limited by applicable bankruptcy, insolvency, reorganization or similar laws relating to or affecting the enforcement of creditors’ rights, the Company has taken all corporate action required to make all of the obligations of the Company reflected in the provisions of this Agreement and the Notes valid and enforceable in accordance with their terms.
5.3 No Conflicts. The execution, delivery and performance of this Agreement, the issuance of the Notes and the compliance by the Company with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company is subject; (ii) result in any violation of the provisions of the organizational documents of the Company; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties or assets, in the case of each of clauses (i) and (iii), that would reasonably be expected to have a Company Material Adverse Effect.
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5.4 No Consents. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Company of this Agreement (including, without limitation, the issuance of the Notes), other than filings required by applicable state securities laws and filings the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect.
5.5 Financial Statements; Undisclosed Liabilities.
(a) The Company Signing Financial Statements (including the notes thereto) (A) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except, in the case of the 2019 Audited Financial Statements, as may be specifically indicated in the notes thereto and subject, in the case of the 2020 Unaudited Financial Statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations, stockholders’ equity and cash flows of the Group Companies as at the date thereof and for the period indicated therein (subject, in the case of the 2020 Unaudited Financial Statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material)) and (C) with respect to the 2019 Audited Financial Statements only, (x) were audited in accordance with the standards of the AICPA and contain an unqualified report of the Company’s auditors and (y) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the date of this Agreement (including Regulation S-X or Regulation S-K, as applicable).
(b) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet (none of which are Liabilities for breach of Contract, breach of warranty, tort, infringement, misappropriation or violation of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of the Business Combination or any Ancillary Documents, the performance by the Company of its covenants or agreements in the Business Combination Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities.
(c) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Company Signing Financial Statements and the Company Closing Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(d) Since January 1, 2018, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
5.6 Absence of MAE. During the period beginning on January 1, 2021 and ending on the date of this Agreement, no Company Material Adverse Effect has occurred.
5.7 Litigation. There is (and since January 1, 2018 there has been) no Proceeding pending or, to the Company’s knowledge, threatened against or involving any Group Company that, if adversely decided or resolved, has been or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
5.8 Securities Law Compliance. Assuming the accuracy of SPAC’s representations and warranties set forth in Section 6 and each Purchaser’s representations and warranties set forth in Section 7, no registration under the Securities Act is required for the offer and sale of the Securities by the Company. The Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Neither the Company, nor any person acting on its behalf, has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Company on an exemption from registration for the transactions contemplated hereby or would require registration of the Notes or the Conversion Shares under the Securities Act.
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5.9 Investment Company Act. The Company is not, and immediately after receipt of payment for the Notes will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
5.10 Use of Proceeds. The Company intends to use the proceeds from the sale of the Securities for working capital and other general corporate purposes and for the payment of consideration and transaction expenses associated with the transactions contemplated by the Business Combination Agreement, the RPC Tyche Purchase Agreement and the Sentar Purchase Agreement.
6. Representations and Warranties of SPAC. In connection with the transactions contemplated by this Agreement, SPAC hereby represents and warrants to the Purchasers as follows:
6.1 SPAC is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. SPAC has all corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Agreement.
6.2 As of the Effective Time, the Conversion Shares will be duly authorized and, when issued and delivered to the Purchasers in satisfaction of all amounts owing under the Note in accordance with the terms of this Agreement, the Conversion Shares will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Agreement, the organizational documents of SPAC or applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under SPAC’s organizational documents (as amended on or prior to the Effective Time) or under the General Corporation Law of the State of Delaware or any similar rights pursuant to any agreement or other instrument to which SPAC is a party or by which it is otherwise bound.
6.3 The execution, delivery and performance by SPAC of this Agreement are within the powers of SPAC and have been duly authorized, validly executed and delivered by SPAC and, assuming that this Agreement constitutes the valid and binding agreement of the Company and the Purchasers, this Agreement constitutes a valid and binding agreement of SPAC and is enforceable against SPAC in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, or (ii) principles of equity, whether considered at law or equity.
6.4 The execution, delivery and performance of this Agreement, including the assumption of the Notes, the issuance of the Conversion Shares and the compliance by SPAC with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of SPAC or any of its subsidiaries pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which SPAC or any of its subsidiaries is a party or by which SPAC or any of its subsidiaries is bound or to which any of the property or assets of SPAC is subject that would reasonably be expected to have a material adverse effect on the business, financial condition, stockholders’ equity or results of operations of SPAC and its subsidiaries, taken as a whole or on the validity of the Shares or the legal authority of SPAC to comply in all material respects with the terms of this Agreement (a “Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of SPAC; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over SPAC or any of its properties or assets that would reasonably be expected to have a material adverse effect on SPAC or materially affect the validity of the Conversion Shares or the legal authority of SPAC to comply in all material respects with this Agreement.
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6.5 As of their respective dates, all reports and filings (the “SEC Reports”) required to be filed by SPAC with the U.S. Securities and Exchange Commission (the “SEC”) complied in all material respects with the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that SPAC makes no such representation or warranty with respect to any information relating to the Company, Sentar, RPC Tyche or any of their respective Affiliates included in any SEC Report or filed as an exhibit thereto. The financial statements of SPAC included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of SPAC as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. A copy of each SEC Report is available to the Purchasers via the SEC’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by SPAC from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports.
6.6 SPAC is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by SPAC of this Agreement (including, without limitation, the assumption of the Notes and the issuance of the Conversion Shares), other than filings (i) with the SEC, (ii) required by applicable state securities laws, (iii) required by the New York Stock Exchange, or such other applicable stock exchange on which SPAC’s common equity is then listed (the “Stock Exchange”), and (iv) the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.
6.7 As of the date hereof, the authorized capital stock of SPAC consists of (i) 1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 550,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), including (1) 500,000,000 shares of Class A Common Stock, par value $0.001 per share (“Class A Common Stock”) and (2) 50,000,000 shares of Class B Common Stock, par value $0.0001 per share (“Class B Common Stock”). As of the date hereof, (i) no shares of Preferred Stock are issued and outstanding, (ii) 33,421,570 shares of Class A Common Stock are issued and outstanding, (iii) 8,355,393 shares of Class B Common Stock are issued and outstanding and (iv) 16,710,785 redeemable warrants and 9,700,000 private placement warrants are outstanding. All (i) issued and outstanding shares of Class A Common Stock and Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding warrants have been duly authorized and validly issued. Except as set forth above and pursuant to this Agreement, the PIPE Subscription Agreements, the Business Combination Agreement and the other agreements and arrangements referred to therein or in the SEC Reports, as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from SPAC any shares of Common Stock or other equity interests in SPAC, or securities convertible into or exchangeable or exercisable for such equity interests. There are no securities or instruments issued by or to which SPAC is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Shares hereunder, (ii) the shares of Class A Common Stock to be issued pursuant to this Agreement or any PIPE Subscription Agreement, including such provisions in Class B Common Stock pursuant to the terms of SPAC’s certificate of incorporation.
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6.8 The issued and outstanding shares of Class A Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Stock Exchange. As of the date hereof, there is no suit, action, proceeding or investigation pending or, to the knowledge of SPAC, threatened against SPAC by the Stock Exchange or the SEC, respectively, to prohibit or terminate the listing of the Class A Common Stock, or to deregister the Class A Common Stock under the Exchange Act. SPAC has taken no action that is designed to terminate the registration of the Class A Common Stock under the Exchange Act.
6.9 Assuming the accuracy of the Company’s representations and warranties set forth in Section 5 and each Purchaser’s representations and warranties set forth in Section 7, no registration under the Securities Act is required for the offer and sale of the Securities by the Company. The Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Neither the Company, nor any person acting on its behalf, has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Company on an exemption from registration for the transactions contemplated hereby or would require registration of the Notes or the Conversion Shares under the Securities Act.
6.10 SPAC is not, and immediately after receipt of payment for the Notes will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
6.11 Except for such matters as have not had and would not be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect or material adverse effect on SPAC, as of the date hereof, there is no (i) action, suit, claim or other proceeding, in each case by or before any governmental authority pending, or, to the knowledge of SPAC, threatened against SPAC or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against SPAC.
7. Representations and Warranties of the Purchasers. In connection with the transactions contemplated by this Agreement, each Purchaser, severally and not jointly, hereby represents and warrants to the Company and SPAC as follows:
7.1 Such Purchaser (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Securities only for its own account and not for the account of others, or if such Purchaser is subscribing for the Securities as a fiduciary or agent for one or more investor accounts, the Purchaser has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information set forth on Schedule A).
7.2 Such Purchaser acknowledges and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Securities have not been registered under the Securities Act. The Purchaser acknowledges and agrees that the Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Purchaser absent an effective registration statement under the Securities Act or pursuant to an applicable exemption from the registration requirements of the Securities Act, and in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Securities shall contain a restrictive legend to such effect. Such Purchaser acknowledges and agrees that the Securities will be subject to transfer restrictions and, as a result of these transfer restrictions, the Purchaser may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Such Purchaser acknowledges and agrees that the Conversion Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year from the date that SPAC files a Current Report on Form 8-K following the Effective Time that includes the “Form 10” information required under applicable U.S. Securities and Exchange Commission (the “SEC”) rules and regulations. Such Purchaser acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, transfer, pledge or disposition of any of the Securities.
7.3 Such Purchaser acknowledges that there have been no representations, warranties, covenants and agreements made to the Purchaser by or on behalf of the Company, SPAC any of their respective Affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Agreement.
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7.4 Such Purchaser’s acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
7.5 Such Purchaser acknowledges and agrees that it has received such information as it deems necessary in order to make an investment decision with respect to the Securities. Without limiting the generality of the foregoing, such Purchaser acknowledges that it has had the opportunity to review SPAC’s filings with the SEC. Such Purchaser acknowledges and agrees that it and its professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as such Purchaser and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities.
7.6 Such Purchaser became aware of this offering of the Securities solely by means of direct contact between the Purchaser and the Company or a representative of the Company, and the Securities were offered to such Purchaser solely by direct contact between the Purchaser and the Company or a representative of the Company. Such Purchaser did not become aware of this offering of the Securities, nor were the Securities offered to the Purchaser, by any other means. The Purchaser acknowledges that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Such Purchaser acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, SPAC, any of their respective Affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing), other than the representations and warranties of the Company contained in Section 5 of this Agreement, in making its investment or decision to invest in the Company.
7.7 Such Purchaser acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities, including, without limitation, those set forth in SPAC’s filings with the SEC. Such Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and such Purchaser has sought such accounting, legal and tax advice as such Purchaser has considered necessary to make an informed investment decision.
7.8 Alone, or together with any professional advisor(s), such Purchaser has adequately analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for such Purchaser and that such Purchaser is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Purchaser’s investment in the Company. The Purchaser acknowledges specifically that a possibility of total loss exists.
7.9 In making its decision to purchase the Securities, such Purchaser has relied solely upon independent investigation made by such Purchaser. Without limiting the generality of the foregoing, such Purchaser has not relied on any statements or other information provided by or on behalf of any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing concerning the Company, SPAC, any transaction contemplated by the Business Combination Agreement, the Securities or the offer and sale of the Securities.
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7.10 Such Purchaser acknowledges and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment.
7.11 Such Purchaser, if not an individual, has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation, with power and authority to enter into, deliver and perform its obligations under this Agreement.
7.12 The execution, delivery and performance by such Purchaser of this Agreement are within the powers of such Purchaser, have been duly authorized and will not constitute or result in a breach or default under or conflict with any order, ruling or regulation of any court or other tribunal or of any governmental commission or agency, or any agreement or other undertaking, to which such Purchaser is a party or by which such Purchaser is bound, and, if such Purchaser is not an individual, will not conflict with or violate any provisions of such Purchaser’s organizational documents, including, without limitation, its incorporation or formation papers, bylaws, indenture of trust or partnership or operating agreement, as may be applicable. The signature on this Agreement is genuine, and the signatory, if such Purchaser is an individual, has legal competence and capacity to execute the same or, if such Purchaser is not an individual, the signatory has been duly authorized to execute the same, and assuming that this Agreement constitutes the valid and binding agreement of Company and SPAC, this Agreement has been duly executed and delivered by such Purchaser and constitutes a legal, valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
7.13 Such Purchaser is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Purchaser agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that such Purchaser is permitted to do so under applicable law. If such Purchaser is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), such Purchaser maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including, without limitation, the OFAC List. To the extent required by applicable law, such Purchaser maintains policies and procedures reasonably designed to ensure that the funds held by such Purchaser and used to purchase the Securities were legally derived.
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7.14 Such Purchaser does not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof such Purchaser has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of SPAC. Notwithstanding the foregoing, (i) in the case of a Purchaser that has other entities under common management with such Purchaser that have no knowledge of this Agreement or of such Purchaser’s participation in the transactions contemplated hereunder (including Purchaser’s affiliates), the representation set forth above shall not apply to such other entities and (ii) in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
8. Registration Rights.
8.1 In the event that the Conversion Shares are issued pursuant to Section 4 and not registered in connection with the consummation of the transactions contemplated by the Business Combination Agreement, SPAC shall, within thirty (30) calendar days of the Effective Time, file with the SEC (at the its sole cost and expense) a registration statement registering the resale of the Conversion Shares (the “Registration Statement”), and it shall use its reasonable best efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) sixty (60) calendar days after the filing thereof (or ninety (90) calendar days after the filing thereof if the SEC notifies SPAC that it will “review” the Registration Statement) and (ii) ten (10) business days after SPAC is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review. SPAC will use its commercially reasonable efforts to provide a draft of the Registration Statement to the Purchasers for review (but not comment) at least two (2) business days in advance of filing the Registration Statement. Unless otherwise agreed to in writing by the Purchasers, no Purchaser shall be identified as a statutory underwriter in the Registration Statement unless requested or required by statute, regulation or exchange rules; provided, that if the SEC requests that the Purchasers be identified as a statutory underwriter in the Registration Statement, the Purchasers will have the opportunity to withdraw from the Registration Statement. Notwithstanding the foregoing, if the SEC prevents SPAC from including any or all of the Conversion Shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act or otherwise, such Registration Statement shall register for resale such number of Conversion Shares which is equal to the maximum number of Conversion Shares as is permitted by the SEC. In such event, the number of Conversion Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares of Class A common stock under Rule 415 under the Securities Act, SPAC shall file a new Registration Statement to register such Conversion Shares not included in the initial Registration Statement and cause such Registration Statement to become effective as promptly as practicable. SPAC agrees to cause such Registration Statement, or another shelf registration statement that includes the Conversion Shares issued pursuant to this Agreement, to remain effective until the earliest of (i) the third anniversary of the Effective Time, (ii) the date on which such Purchaser ceases to hold any Conversion Shares issued pursuant to this Agreement, or (iii) the first date on which such Purchaser is able to sell all of its Conversion Shares issued pursuant to this Agreement (or shares received in exchange therefor) without restriction under Rule 144 of the Securities Act, including without limitation as to any volume and manner of sale restrictions and without the requirement that SPAC be in compliance with the public information requirements of Rule 144(c) or Rule 144(i), as applicable. Such Purchaser agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, to SPAC upon request to assist SPAC in making the determination described above. SPAC may amend the Registration Statement so as to convert the Registration Statement to a Registration Statement on Form S-3 at such time after SPAC becomes eligible to use such Form S-3.
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8.2 Notwithstanding anything to the contrary contained herein, SPAC may, upon written notice to the Purchasers, delay or postpone filing of such Registration Statement, and from time to time require Purchaser not to sell under the Registration Statement or suspend the use of any such Registration Statement if it determines that in order for the Registration Statement to not contain a material misstatement or material omission, an amendment or supplement thereto would be needed, or if such filing or use would reasonably be expected to materially and adversely affect a bona fide business or financing transaction being pursued by SPAC or would require premature disclosure of information that would reasonably be expected to materially and adversely affect SPAC (each such circumstance, a “Suspension Event”); provided that (w) SPAC shall not so delay filing or so suspend the use of the Registration Statement on more than three (3) occasions or for more than one-hundred twenty (120) total days in any three hundred and sixty (360) day period, or on any occasion for a period of more than sixty (60) consecutive days and (x) SPAC shall use commercially reasonable efforts to make such Registration Statement available for the sale by such Purchaser of such securities as soon as practicable thereafter. Upon receipt of any such written notice from SPAC (which notice shall not contain any material non-public information regarding SPAC) of the occurrence of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, each Purchaser agrees that (i) it will immediately discontinue offers and sales of the Conversion Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until such Purchaser receives copies of a supplemental or amended prospectus (which SPAC agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and such Purchaser receives notice that any post-effective amendment has become effective or unless otherwise notified by SPAC that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by SPAC unless otherwise required by law, subpoena, regulatory request, requirement or legal proceeding. If so directed by SPAC, such Purchaser will deliver to SPAC, or in such Purchaser’s sole discretion destroy, all copies of the prospectus covering the Conversion Shares in the Purchaser’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Conversion Shares shall not apply (w) to the extent the Purchaser is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.
8.3 SPAC will file all reports, and provide all customary and reasonable cooperation, necessary to enable each Purchaser to resell the Conversion Shares pursuant to the Registration Statement (for as long as the Registration Statement shall remain effective) or Rule 144 of the Securities Act (when Rule 144 of the Securities Act becomes available to such Purchaser), as applicable, qualify the Conversion Shares for listing on the applicable stock exchange on which SPAC’s Class A common stock is then listed, and update or amend the Registration Statement as necessary to include the Conversion Shares. SPAC agrees, for as long as such Purchaser holds Conversion Shares, to file with the SEC in a timely manner all reports and other documents required of SPAC under the Securities Act and the Exchange Act so long as SPAC remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; make and keep public information available, as those terms are understood and defined in Rule 144; and furnish to each Purchaser so long as it owns Conversion Shares, promptly upon request, (x) a written statement by SPAC, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of SPAC and such other reports and documents so filed by SPAC (public availability on the SEC’s EDGAR system (or successor system) being sufficient) and (z) such other information as may be reasonably requested to permit such Purchaser to sell such securities pursuant to Rule 144 without registration. If requested by any Purchaser, SPAC shall (i) cause the removal of the restrictive legends from any Conversion Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of such Conversion Shares and, at the request of a Holder (as defined below), cause the removal of all restrictive legends from any Conversion Shares held by such Holder that may be sold by such Holder without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (ii) cause its legal counsel to deliver an opinion, if necessary, to the transfer agent in connection with the instruction under subclause (i) to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, in each case upon the receipt of customary representations and other documentation, if any, from the Holder as reasonably requested by SPAC, its counsel or the transfer agent, establishing that restrictive legends are no longer required. “Holder” shall mean with respect to each Purchaser, such Purchaser or any affiliate of such Purchaser to which the rights under this Section 8 shall have been assigned.
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8.4 SPAC’s obligations to include the Conversion Shares (if any) issued pursuant to this Agreement for resale in the Registration Statement are contingent upon such Purchaser furnishing in writing to SPAC such information required by SEC rules for the Registration Statement regarding such Purchaser, the securities of SPAC held by the Purchaser and the intended method of disposition of such Securities, which shall be limited to non-underwritten public offerings, as shall be reasonably requested by SPAC to effect the registration of such Conversion Shares, and shall execute such documents in connection with such registration as SPAC may reasonably request that are customary of a selling stockholder in similar situations. provided that no Purchaser shall be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restrictions on the ability to transfer the Conversion Shares.
8.5 SPAC shall advise the Purchasers as expeditiously as possible, but in any event within five (5) business days:
(a) when a Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;
(b) of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information concerning any of the Purchasers;
(c) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(d) of the receipt by SPAC of any notification with respect to the suspension of the qualification of the Conversion Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(e) subject to the provisions in this Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
Notwithstanding anything to the contrary set forth herein, SPAC shall not, when so advising any Purchaser of such events, provide such Purchaser with any material, nonpublic information regarding SPAC other than to the extent that providing notice to such Purchaser of the occurrence of the events listed in (a) through (e) above constitutes material, nonpublic information regarding SPAC.
8.6 SPAC shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable. Upon the occurrence of any event contemplated by Section 8.5(e), except for such times as SPAC is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Agreement, SPAC shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Conversion Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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8.7 Indemnification.
(a) SPAC shall indemnify and hold harmless each Purchaser (to the extent a seller under the Registration Statement), the officers, directors, advisors and employees of such Purchaser, each person who controls such Purchaser (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”) that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding such Purchaser furnished in writing to SPAC by such Purchaser expressly for use therein or that such Purchaser has omitted a material fact from such information. Notwithstanding the foregoing, SPAC’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of SPAC (which consent shall not be unreasonably withheld or delayed).
(b) Each Purchaser shall, severally and not jointly with any other Purchaser, indemnify and hold harmless SPAC, its directors, officers, advisors and employees, each person who controls SPAC (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and the directors, officers and employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are caused by or contained in information regarding such Purchaser furnished in writing to SPAC by such Purchaser expressly for use therein. In no event shall the liability of any Purchaser be greater in amount than the dollar amount of the net proceeds received by such Purchaser upon the sale of Conversion Shares giving rise to such indemnification obligation. Notwithstanding the foregoing, each Purchaser’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of such Purchaser (which consent shall not be unreasonably withheld or delayed).
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(c) Any person or entity entitled to indemnification herein shall (A) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (B) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
(d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person or entity of such indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided under this Section 8.7 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, the liability of each Purchaser shall be limited to the net proceeds received by such Purchaser from the sale of Conversion Shares giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in this Section 8, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8.7 from any person or entity who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything to the contrary in this Section 8 or otherwise in this Agreement, this Section 8, and all covenants, agreements, obligations and rights contained herein, shall only be effective following, and subject to and conditioned upon the occurrence of, the Effective Time.
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9. Miscellaneous.
9.1 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement will inure to the benefit of, and be binding upon, the respective successors and assigns of the parties; provided, however, that the Company may not assign its rights or obligations, in full or in part, under this Agreement without the written consent of the Requisite Noteholders and SPAC and none of the Purchasers may assign any of its rights or obligations, in full or in part, without the written consent of the Company and SPAC. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
9.2 Choice of Law. This Agreement and the Notes will each be governed by and construed in accordance with the laws of the state of Delaware (regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof) as to all matters (including any action, suit, litigation, arbitration, mediation, claim, charge, complaint, inquiry, proceeding, hearing, audit, investigation or reviews by or before any Governmental Entity related hereto), including matters of validity, construction, effect, performance and remedies.
9.3 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.4 Titles and Subtitles; No Strict Construction. The titles and subtitles used in this Agreement are included for convenience only and are not to be considered in construing or interpreting this Agreement. No party hereto, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any party hereto.
9.5 Notices. Any notice or communication required or permitted hereunder to be given to any party hereto shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, to such address(es) or email address(es) set forth on the signature page hereto, and shall be deemed to be given and received (a) when so delivered personally, (b) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (c) three (3) Business Days after the date of mailing to the address below or to such other address or addresses as any party may hereafter designate by notice to the other parties hereto
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9.6 No Finder’s Fee. Each of the Purchasers represents that it neither is nor will be obligated to pay any finder’s fee, broker’s fee or commission in connection with the transactions contemplated by this Agreement. Each Purchaser agrees to indemnify and to hold the Company and SPAC harmless from any liability for any commission or compensation in the nature of a finder’s or broker’s fee arising out of the transactions contemplated by this Agreement (and the costs and expenses of defending against such liability or asserted liability) for which each Purchaser or any of its officers, employees or representatives is responsible.
9.7 Expenses. Except, in the case of SPAC, as otherwise set forth in the Business Combination Agreement, each party hereto will pay all costs and expenses that it incurs with respect to the negotiation, execution and delivery of and performance of its covenants and obligations under this Agreement.
9.8 Entire Agreement; Amendments and Waivers. This Agreement, the Notes, the Business Combination Agreement and the other documents referred to herein and therein constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof. The Company’s and SPAC’s agreements with each of the Purchasers are separate agreements, and the sales of the Notes to each of the Purchasers are separate sales. Notwithstanding the foregoing, any term of this Agreement or the Notes may be amended with the written consent of the Company, the Requisite Noteholders and SPAC and the observance of any term of this Agreement or the Notes may be waived (either generally or in a particular instance and either retroactively or prospectively) in writing by the party against whom such is to be effective (provided that, notwithstanding the foregoing, any such waiver shall require the prior written consent of SPAC). Any waiver or amendment effected in accordance with this Section 9.8 will be binding upon each party to this Agreement and each holder of a Note purchased under this Agreement then outstanding and each future holder of all such Notes.
9.9 Effect of Amendment or Waiver. Each Purchaser acknowledges and agrees that by the operation of Section 9.8 hereof, the Requisite Noteholders will, subject to the approval of the Company and SPAC, have the right and power to diminish or eliminate all rights of such Purchaser under this Agreement and each Note issued to such Purchaser.
9.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
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9.11 Transfer Restrictions.
(a) Further Limitations on Transfer. Without in any way limiting the representations and warranties set forth in this Agreement, each Purchaser shall not Transfer all or any portion of the Notes (i) if the Business Combination Agreement has not been terminated in accordance with its terms, without the prior written consent of SPAC and the Company or (ii) if the Business Combination Agreement has been terminated in accordance with its terms, unless and until the transferee has agreed in writing for the benefit of the Company to make the representations and warranties set out in Section 5 of this Agreement and such Purchaser has (A) notified the Company of the proposed Transfer; (B) furnished the Company with a detailed statement of the circumstances surrounding the proposed Transfer; and (C) if requested by the Company, furnished the Company with an opinion of counsel reasonably satisfactory to the Company that such Transfer will not require registration under the Securities Act.
Each Purchaser agrees that, for purposes of any Transfer permitted by Section 9.11(a)(ii), it will not make any disposition of any of the Notes to the Company’s competitors, as determined in good faith by the Company.
(b) Legends. Each Purchaser understands and acknowledges that the Notes may bear the following legend:
THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR UPON RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
9.12 Exculpation among Purchasers. Each Purchaser agrees that no other Purchaser, nor the controlling persons, officers, directors, partners, agents, stockholders or employees of any other Purchaser, will be liable for any action heretofore or hereafter taken or not taken by any of them in connection with the purchase and sale of the Securities.
9.13 Non-Reliance and Exculpation.
(a) Each Purchaser acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any Person, other than the representations and warranties of the Company expressly contained in Section 5 in making its investment or decision to invest in the Notes and, subject to, and conditioned upon the occurrence of, the Effective Time, the Conversion Shares. Each Purchaser acknowledges and agrees that, except for the Company and SPAC, in each case, on the terms and subject to the conditions of this Agreement (including, in the case of SPAC, subject to the last sentence of this Section 9.13(a)), no Person (including the Non-Party Affiliates) shall have any obligation or Liability to any Purchaser pursuant to, arising out of or relating to this Agreement or Notes or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the sale of the Notes, the conversion of the Notes into Conversion Shares or with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, except as expressly provided herein, or for any actual or alleged inaccuracies, misstatements or omissions with respect to any information or materials of any kind furnished by the Company, SPAC or any Non-Party Affiliate concerning SPAC, the Company or any of their respective Affiliates, this Agreement, the Notes, the Business Combination Agreement or the transactions contemplated hereby or thereby, except for claims pursuant to any Ancillary Document by any party(ies) thereto against any other party(ies) thereto on the terms and subject to the conditions therein. Notwithstanding the foregoing or anything to the contrary in this Agreement, each of the Purchasers and the Company acknowledges and agrees that (i) in no event shall SPAC or any of its Non-Party Affiliates have any obligations or Liabilities related to or arising out of this Agreement or the Notes (including with respect to any representations, warranties, covenants, agreements or obligations of any other party under this Agreement or any Note), except for, in the case of SPAC only, subject to, and conditioned upon the occurrence of, the Effective Time, (A) the obligation to assume the Notes and issue the Conversion Shares in satisfaction of the principal amount thereof and accrued and unpaid interest thereon, in each case, on the terms and subject to the other conditions set forth in Section 4 and (B) the covenants, agreements and obligations of SPAC that expressly contemplate performance following the Effective Time, and (ii) without limiting the generality of clause (i), if the Business Combination Agreement is terminated in accordance with its terms, then SPAC shall have no further obligations or Liabilities related to or arising out of this Agreement or the Notes.
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(b) Each Purchaser acknowledges that SPAC is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving SPAC and one or more businesses or assets. Each Purchaser further acknowledges that, as described in SPAC’s prospectus relating to its initial public offering dated September 3, 2020 (the “Prospectus”) available at www.sec.gov, substantially all of SPAC’s assets consist of the cash proceeds of SPAC’s initial public offering and private placement of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of SPAC, its public stockholders and the underwriters of SPAC’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to SPAC to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. Without limiting the generality of, Section 9.13(a), for and in consideration of SPAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, each Purchaser hereby irrevocably waives any and all right, title and interest, or any claim of any kind it has or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Agreement or the transactions contemplated hereby regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability.
9.14 Further Assurances. From time to time, each of the Company and the Purchasers will execute and deliver such additional documents and will provide such additional information as may reasonably be required to carry out the terms of this Agreement and the Notes and the transactions contemplated hereby and thereby. Without limiting the generality of the foregoing or any other covenants or agreements herein, SPAC may request from each Purchaser such additional information as SPAC may deem necessary or advisable to register the resale of the Conversion Shares and evaluate the eligibility of such Purchaser to acquire the Conversion Shares, and each Purchaser shall provide any such information so requested.
9.15 Venue; Waiver of Jury Trial. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE CHANCERY COURT OF THE STATE OF DELAWARE (OR, IF THE CHANCERY COURT OF THE STATE OF DELAWARE DECLINES TO ACCEPT JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND THE NOTES AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR THE NOTES MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9.5 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
9.16 Specific Performance. The parties hereto acknowledge and agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that (a) each party hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, without posting a bond or undertaking and without proof of damages, to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise and (b) no party hereto shall assert that a remedy of specific enforcement pursuant to this Section 9.16 is unenforceable, invalid, contrary to applicable law or inequitable for any reason.
9.17 Disclosure. Each Purchaser acknowledges and agrees that SPAC may file a copy of this Agreement with the SEC as an exhibit to a periodic report or a registration statement of SPAC. The Company and SPAC are each entitled to rely upon this Agreement and each is irrevocably authorized to produce this Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
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Notwithstanding anything in this Agreement to the contrary, SPAC shall not, and shall cause its representatives to not publicly disclose the name of any Purchaser or any of its affiliates, or include the name of any Purchaser or any of its affiliates in any press release or marketing materials, or for any similar or related purpose, or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of such Purchaser, except (i) as required by the federal securities law in connection with the Registration Statement, (ii) the filing of a form of this Agreement with the SEC and in the related Current Report on Form 8-K in a manner acceptable to such Purchaser, and (iii) to the extent such disclosure is required by law, at the request of the Staff of the SEC or regulatory agency or under the regulations of the Stock Exchange, in which case SPAC shall provide such Purchaser with prior written notice of such disclosure permitted under this sub-clause (iii).
9.18 Acknowledgment. Each Purchaser acknowledges that (a) SPAC, the Company and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Agreement and (b) this Agreement is being entered into in order to induce SPAC to execute and deliver the Business Combination Agreement. Prior to the Effective Time, each Purchaser agrees to promptly notify SPAC and the Company if any of the acknowledgments, understandings, agreements, representations or warranties set forth in Section 7 are no longer accurate. Each Purchaser acknowledges and agrees that if the Conversion Shares are issued to such Purchaser such issuance will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein by such Purchaser as of the time of such issuance.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
QOMPLX, Inc. | ||
By | /s/ Jason Crabtree | |
Name: Jason Crabtree | ||
Title: Chief Executive Officer | ||
Notice: | ||
Attention: | ||
Address: | ||
Email Address: | ||
Tailwind Acquisition Corp. | ||
By | /s/ Chris Hollod | |
Name: Chris Hollod | ||
Title: Chief Executive Officer | ||
Notice: | ||
Attention: | ||
Address: | ||
Email Address: |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
CANNAE HOLDINGS, LLC | ||
By: | /s/ Michael Gravelle | |
Name: | Michael Gravelle | |
Title: | Managing Director | |
By: | /s/ Alex Papson | |
Name: | Alex Papson | |
BGPT FRACTAL LLP | ||
By: | /s/ Frank R. Martire Jr. | |
Name: | Frank R. Martire Jr. | |
Title: | Partner | |
By: | /s/ Christian Wall | |
Name: | Christian Wall | |
By: | /s/ William Glidewell | |
Name: | William Glidewell | |
CHD IRA LLC | ||
By: | /s/ Clayton H. DeGiacinto | |
Name: | Clayton H. DeGiacinto | |
Title: | Manager | |
CED IRA LLC | ||
By: | /s/ Cynthia DeGiacinto | |
Name: | Cynthia DeGiacinto | |
Title: | Manager | |
DEGIACINTO FAMILY 2020 EXEMPT SPOUSAL TRUST | ||
By: | /s/ Scott Schaecher | |
Name: | Scott Schaecher | |
Title: | Trustee |
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SCHEDULE OF Purchasers
Purchaser |
Consideration and
Principal Amount of Promissory Note |
|||
Alex Papson | $ | 500,000.00 | ||
BGPT Fractal LP | $ | 1,000,000.00 | ||
Christian Wall | $ | 500,000.00 | ||
Clayton DeGiacinto | $ | 2,000,000.00 | ||
Cannae Holdings, LLC | $ | 12,500,000.00 | ||
William Glidewell | $ | 3,500,000.00 | ||
TOTAL | $ | 20,000,000.00 |
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SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE PURCHASER
A. | QUALIFIED INSTITUTIONAL BUYER STATUS |
(Please check the applicable subparagraphs): | |
¨ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (a “QIB”)).
B. | INSTITUTIONAL ACCREDITED INVESTOR STATUS |
(Please check the applicable subparagraphs): |
1. | ¨ We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an “accredited investor.” |
2. | ¨ We are not a natural person. |
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Purchaser has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to the Purchaser and under which the Purchaser accordingly qualifies as an “accredited investor.”
¨ Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;
¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
¨ Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;
¨ Any organization described in Section 501(c)(3) of the Internal Revenue Code, corporation, similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;
¨ Any trust with assets in excess of $5,000,000, not formed to acquire the securities offered, whose purchase is directed by a sophisticated person; or
¨ Any entity in which all of the equity owners are accredited investors meeting one or more of the above tests.
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This page should be completed by the Purchaser
and constitutes a part of the Agreement.
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EXHIBIT A
Form of Convertible Promissory Note
THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR UPON RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
CONVERTIBLE PROMISSORY NOTE
No. CN-[NUMBER] | Date of Issuance |
US$[PRINCIPAL AMOUNT] | [DATE] |
FOR VALUE RECEIVED, QOMPLX, Inc., a Delaware corporation (the “Company”), hereby promises to pay to the order of [PURCHASER] (the “Holder”), the principal sum of US$[PRINCIPAL AMOUNT], together with interest thereon from the date of this Note. Interest will accrue at a rate of seven and one-half percent (7.5%) per annum. Unless earlier converted into Conversion Shares pursuant to Section 4 of that certain Convertible Note Purchase Agreement dated as of the date hereof, by and among the Company, the Holder and the other parties thereto (the “Purchase Agreement”), the principal amount and all accrued interest owing under this Note will be due and payable by the Company in full on the Maturity Date.
This Note is one of a series of Notes issued pursuant to the Purchase Agreement, and capitalized terms not defined herein will have the meanings set forth in the Purchase Agreement.
1. Payment. All payments will be made in lawful money of the United States of America at the principal office of the Company, or at such other place as the Holder may from time to time designate in writing to the Company. Payment will be credited first to accrued interest due and payable, with any remainder applied to the principal amount. Prepayment of the principal amount, together with accrued interest, may not be made without the written consent of the Holder and SPAC, except in connection with the conversion of this Note for the applicable number of Conversion Shares pursuant to Section 4 of the Purchase Agreement.
2. Security. This Note is a general unsecured obligation of the Company.
3. Conversion of the Notes. This Note and any amounts due hereunder will be convertible into Conversion Shares in accordance with the terms of Section 4 of the Purchase Agreement.
4. Amendments and Waivers; Resolutions of Dispute; Notice. The amendment or waiver of any term of this Note, the resolution of any controversy or claim arising out of or relating to this Note and the provision of notice among the Company and the Holder will be governed by Section 9.8 of the Purchase Agreement.
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5. Successors and Assigns. This Note applies to, inures to the benefit of, and binds the respective successors and assigns of the parties hereto; provided, however, that the Company may not assign its rights or obligations, in full or in part, under this Note without the written consent of the Requisite Noteholders and SPAC and the Holder may not assign any of its rights or obligations, in full or in part, without the written consent of the Company and SPAC. Any Transfer of this Note may be effected only pursuant to the Purchase Agreement and by surrender of this Note to the Company and reissuance of a new note to the transferee (other than a Transfer pursuant to Section 4 of the Purchase Agreement). The Holder and any subsequent holder of this Note receives this Note subject to the foregoing terms and conditions and agrees to comply with the foregoing terms and conditions for the benefit of the Company and any other Purchasers (or their respective successors or assigns).
6. Officers and Directors not Liable. In no event will any officer or director of the Company be liable for any amounts due and payable pursuant to this Note.
7. Limitation on Interest. In no event will any interest charged, collected or reserved under this Note exceed the maximum rate then permitted by applicable law, and if any payment made by the Company under this Note exceeds such maximum rate, then such excess sum will be credited by the Holders as a payment of the principal amount.
8. Choice of Law. Sections 10.2 and 10.15 of the Purchase Agreement are incorporated herein by reference, mutatis mutandis.
QOMPLX, Inc. | ||
By | ||
Name: | ||
Title: | ||
Purchaser: | ||
By | ||
Name: | ||
Title: |
26
Exhibit 10.6
Execution Version
FORM OF TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT (this “Agreement”) is entered into as of March [●], 2021, by and between Tailwind Acquisition Corp., a Delaware corporation (“Tailwind”), QOMPLX, Inc., a Delaware corporation (the “Company”) (solely for purposes of Section 9, Section 10 and Section 6, Section 8 and Section 11 through Section 17 (to the extent related to Section 9 and Section 10)), and [●], a [●] (the “Stockholder”). Each of Tailwind, the Company and the Stockholder are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Business Combination Agreement (defined below).
RECITALS
WHEREAS, on March 1, 2021, Tailwind, Compass Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Tailwind (“Merger Sub”), the Company, and Rationem, LLC, in its capacity as the representative of the Company Stockholders, entered into that certain Business Combination Agreement (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), pursuant to which, among other things, Merger Sub will merge with and into the Company, with the Company as the surviving company in the merger and, after giving effect to such merger, becoming a wholly-owned Subsidiary of Tailwind, and each Company Share (including the Subject Company Shares (as defined below)) will be converted into the right to receive Tailwind Shares, in each case, on the terms and subject to the conditions set forth in the Business Combination Agreement;
WHEREAS, the Stockholder is the record and beneficial owner of the number and class or series (as applicable) of Equity Securities of the Company set forth on Schedule A hereto (together with any other Equity Securities of the Company of which the Stockholder acquires record or beneficial ownership after the date hereof, collectively, the “Subject Company Shares”);
WHEREAS, in consideration for the benefits to be received by the Stockholder under the terms of the Business Combination Agreement and as a material inducement to Tailwind and the other Tailwind Parties agreeing to enter into and consummate the transactions contemplated by the Business Combination Agreement, the Stockholder agrees to enter into this Agreement and to be bound by the agreements, covenants and obligations contained in this Agreement; and
WHEREAS, the Parties acknowledge and agree that the Tailwind Parties would not have entered into and agreed to consummate the transactions contemplated by the Business Combination Agreement without the Stockholder entering into this Agreement and agreeing to be bound by the agreements, covenants and obligations contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
AGREEMENT
1. Company Stockholder Consent and Related Matters.
(a) As promptly as reasonably practicable (and in any event within one (1) Business Day) following the time at which the Registration Statement / Proxy Statement is declared effective under the Securities Act, the Stockholder shall duly execute and deliver to the Company and Tailwind the Company Stockholder Written Consent under which it shall irrevocably and unconditionally consent to the matters, actions and proposals contemplated by Section 5.13(b) (Company Stockholder Approval) of the Business Combination Agreement. Without limiting the generality of the foregoing, prior to the Closing, the Stockholder shall vote (or cause to be voted) the Subject Company Shares as of the applicable record date (i) in favor of and/or consent to any such matters, actions or proposals, in each case, that are necessary or reasonably requested by the Company or Tailwind for the consummation of the Merger or any of the other transactions contemplated by the Business Combination Agreement or the Ancillary Documents and (ii) against and withhold consent with respect to (A) any Company Acquisition Proposal or (B) any other matter, action or proposal that would reasonably be expected to result in any of the conditions to the Closing set forth in Sections 6.1 or 6.2 of the Business Combination Agreement not being satisfied.
(b) Without limiting any other rights or remedies of Tailwind, the Stockholder hereby appoints Tailwind or any individual designated in writing by Tailwind as the Stockholder’s agent, attorney-in-fact and proxy (with full power of substitution and resubstituting), for and in the name, place and stead of the Stockholder, to attend on behalf of the Stockholder any meeting of the Company Stockholders with respect to the matters described in Section 1(a), to include the Subject Company Shares as of the record date of such meeting in any computation for purposes of establishing a quorum at any such meeting of the Company Stockholders, to vote (or cause to be voted) the Subject Company Shares as of the applicable record date or consent (or withhold consent) with respect to any of the matters described in Section 1(a) in connection with any meeting of the Company Stockholders or any action by written consent by the Company Stockholders (including the Company Stockholder Written Consent), in each case, in the event that (i) the Stockholder fails to perform or otherwise comply with the covenants, agreements or obligations set forth in Section 1(a), (ii) any Proceeding is pending or threatened by or on behalf of the Stockholder or the Company that challenges or could impair the enforceability or validation of the covenants, agreements or obligations set forth in this Agreement or (iii) Tailwind notifies the Stockholder in writing of its intent to exercise the proxy set forth in this Section 1(b).
(c) The proxy granted by the Stockholder pursuant to Section 1(b) shall be irrevocable during the term of this Agreement, is coupled with an interest sufficient in law to support an irrevocable proxy and is granted in consideration for Tailwind entering into the Business Combination Agreement and agreeing to consummate the transactions contemplated thereby. The proxy granted by the Stockholder pursuant to Section 1(b) is also a durable proxy and shall survive the bankruptcy, dissolution, death, incapacity or other inability to act by the Stockholder and shall revoke any and all prior proxies granted by the Stockholder with respect to the Subject Company Shares. The vote or consent of the proxyholder with respect to the matters described in Section 1(a) shall control in the event of any conflict between such vote or consent by the proxyholder of the Subject Company Shares and a vote or consent by the Stockholder of the Subject Company Shares (or any other Person with the power to vote or provide consent with respect to the Subject Company Shares) with respect to the matters described in Section 1(a). The proxyholder may not exercise the proxy granted pursuant to Section 1(b) on any matter except for those matters described in Section 1(a). Notwithstanding anything to the contrary herein, the proxy granted by the Stockholder pursuant to Section 1(b) shall be revoked and shall terminate at such time as this Agreement is terminated in accordance with Section 6.
2. Appointment of the Company Stockholder Representative. The Stockholder hereby irrevocably agrees and consents to the appointment of Rationem, LLC as the Company Stockholder Representative and as the exclusive agent and attorney-in-fact to act on behalf of each Company Stockholder (solely in their capacity as such) with the powers and authority set forth in Section 8.19 (Company Stockholder Representative) of the Business Combination Agreement.
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3. Other Covenants and Agreements.
(a) The Stockholder hereby agrees that, notwithstanding anything to the contrary in any such agreement, (i) each of the agreements set forth on Schedule B hereto and any other agreements required to be terminated pursuant to Section 5.20 (Company Related Party Transactions) of the Business Combination Agreement to which the Stockholder is a party or bound shall be automatically terminated and of no further force and effect (including any provisions of any such agreement that, by its terms, survive such termination) effective as of, and subject to and conditioned upon the occurrence of, the Closing and (ii) upon such termination neither the Company nor any of its Affiliates (including the other Group Companies and, from and after the Effective Time, Tailwind and its Affiliates) shall have any further obligations or liabilities under each such agreement. Without limiting the generality of the foregoing, the Stockholder hereby agrees to promptly execute and deliver all additional mutually agreed upon agreements, documents and instruments (such agreement not to be unreasonably withheld, conditioned or delayed; provided, that the Stockholder agrees that any document that reflects the substance of the immediately preceding sentence (and not any other substantive provisions) and is solely for purposes of properly effectuating any such termination as provided in such sentence in accordance with the terms of the immediately preceding sentence shall be reasonable) and take, or cause to be taken, all actions necessary or reasonably advisable in order to achieve the purpose of the preceding sentence.
(b) The Stockholder shall be bound by and subject to (i) Sections 5.3(a) (Confidentiality) and 5.4(a) (Public Announcements) of the Business Combination Agreement to the same extent as such provisions apply to the parties to the Business Combination Agreement, as if the Stockholder is directly party thereto, and (ii) the first sentence of Section 5.6(a) (Exclusive Dealing) and Section 8.18 (Trust Account Waiver) of the Business Combination Agreement to the same extent as such provisions apply to the Company, as if the Stockholder is directly party thereto.
(c) The Stockholder acknowledges and agrees that the Tailwind Parties are entering into the Business Combination Agreement in reliance upon the Stockholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, and but for the Stockholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, the Tailwind Parties would not have entered into or agreed to consummate the transactions contemplated by the Business Combination Agreement.
(d) The Stockholder hereby agrees not to exercise any right to redeem any Tailwind Shares, owned directly or indirectly through any of his, her or its Affiliates, as of the date hereof or acquired by the Stockholder or any of his, her or its Affiliates subsequent to the date hereof.
4. Stockholder Representations and Warranties. The Stockholder represents and warrants to Tailwind as follows:
(a) The Stockholder is a corporation, limited liability company or other applicable business entity duly organized or formed, as applicable, validly existing and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) under the Laws of its jurisdiction of formation or organization (as applicable).
(b) The Stockholder has the requisite corporate, limited liability company or other similar power and authority to execute and deliver this Agreement, to perform his, her or its covenants, agreements and obligations hereunder (including, for the avoidance of doubt, those covenants, agreements and obligations hereunder that relate to the provisions of the Business Combination Agreement), and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement has been duly authorized by all necessary corporate (or other similar) action on the part of the Stockholder. This Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid, legal and binding agreement of the Stockholder (assuming that this Agreement is duly authorized, executed and delivered by Tailwind), enforceable against the Stockholder in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
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(c) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Stockholder with respect to the Stockholder’s execution, delivery or performance of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby, except for any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not reasonably be expected to materially and adversely affect the ability of the Stockholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder.
(d) None of the execution or delivery of this Agreement by the Stockholder, the performance by the Stockholder of any of his, her or its covenants, agreements or obligations under this Agreement (including, for the avoidance of doubt, those covenants, agreements and obligations under this Agreement that relate to the provisions of the Business Combination Agreement) or the consummation of the transactions contemplated hereby will, directly or indirectly (with or without due notice or lapse of time or both), (i) result in any breach of any provision of the Stockholder’s Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which the Stockholder is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which the Stockholder or any of his, her or its properties or assets are bound or (iv) result in the creation of any Lien upon the Subject Company Shares, except, in the case of any of clauses (ii) and (iii) above, as would not reasonably be expected to materially and adversely affect the ability of the Stockholder to perform, or otherwise comply with, any of his, her or its covenants, agreements or obligations hereunder.
(e) The Stockholder is the record and beneficial owner of the Subject Company Shares and has valid, good and marketable title to the Subject Company Shares, free and clear of all Liens (other than transfer restrictions under applicable Securities Law or under the Company Stockholders Agreements). Except for the Equity Securities of the Company set forth on Schedule A hereto, together with any other Equity Securities of the Company of which the Stockholder acquires record or beneficial ownership after the date hereof that is either permitted pursuant to or acquired in accordance with Section 5.1(b)(v) of the Business Combination Agreement, the Stockholder does not own, beneficially or of record, any Equity Securities of any Group Company or have the right to acquire any Equity Securities of any Group Company. The Stockholder has the sole right to vote (and provide consent in respect of, as applicable) the Subject Company Shares and, except for this Agreement, the Business Combination Agreement and the Company Stockholders Agreements, the Stockholder is not party to or bound by (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)) require the Stockholder to Transfer any of the Subject Company Shares or (ii) any voting trust, proxy or other Contract with respect to the voting or Transfer of any of the Subject Company Shares.
(f) There is no Proceeding pending or threatened in writing against or involving the Stockholder or any of his, her or its Affiliates that, if adversely decided or resolved, would reasonably be expected to materially and adversely affect the ability of the Stockholder to perform, or otherwise comply with, any of its covenants, agreements or obligations under this Agreement.
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(g) The Stockholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that (i) he, she or it has conducted his, her or its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning, the business, assets, condition, operations and prospects of, the Tailwind Parties and (ii) he, she or it has been furnished with or given access to such documents and information about the Tailwind Parties and their respective businesses and operations as he, she or it and his, her or its Representatives have deemed necessary to enable him, her or it to make an informed decision with respect to the execution, delivery and performance of this Agreement or the other Ancillary Documents to which he, she or it is or will be a party and the transactions contemplated hereby and thereby.
(h) In entering into this Agreement and the other Ancillary Documents to which he, she or it is or will be a party, the Stockholder has relied solely on his, her or its own investigation and analysis and the representations and warranties expressly set forth in the Ancillary Documents to which he, she or it is or will be a party and no other representations or warranties of any Tailwind Party or any other Person, either express or implied, and the Stockholder, on his, her or its own behalf and on behalf of his, her or its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in this Agreement or in the other Ancillary Documents to which he, she or it is or will be a party, none of the Tailwind Parties or any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Business Combination Agreement or the other Ancillary Documents or the transactions contemplated hereby or thereby.
5. Transfer of Subject Securities. Except as expressly contemplated by the Business Combination Agreement or with the prior written consent of Tailwind (such consent to be given or withheld in its sole discretion), from and after the date hereof until the date of any termination of this Agreement in accordance with its terms, the Stockholder agrees not to (a) Transfer any of the Subject Company Shares, (b) enter into (i) any option, warrant, purchase right, or other Contract that could (either alone or in connection with one or more events, developments or events (including the satisfaction or waiver of any conditions precedent)) require the Stockholder to Transfer the Subject Company Shares or (ii) except as otherwise provided in Section 1(b) or elsewhere in this Agreement, any voting trust, proxy or other Contract with respect to the voting or Transfer of the Subject Company Shares, or (c) take any actions in furtherance of any of the matters described in the foregoing clauses (a) or (b). For purposes of this Agreement, “Transfer” means any, direct or indirect, sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest in or disposition or encumbrance of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law or otherwise). Notwithstanding the foregoing, from and after the date of the Stockholder’s execution and delivery to the Company and Tailwind of the Company Stockholder Written Consent or the conclusion of any meeting of the Company Stockholders with respect to the matters described in Section 1(a) at which the Stockholder voted the Subject Company Shares in accordance with Section 1(a), the Stockholder shall be permitted to effectuate a Transfer solely in connection with: (A) any bona fide mortgage, encumbrance or pledge to a financial institution or other third party in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof; or (B) any pledge of capital stock or securities that is made in connection with a margin loan, provided that at the time of such pledge, the Stockholder is not in possession of material non-public information regarding the Company; provided, that any such mortgage, encumbrance or pledge placed on any Subject Company Shares will be released and discharged in full at or prior to the Effective Time.
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6. Termination. This Agreement shall automatically terminate, without any notice or other action by any Party, and be void ab initio upon the earliest of (a) the Effective Time, (b) the termination of the Business Combination Agreement in accordance with its terms, (c) the mutual written agreement of the Parties to terminate this Agreement and (d) the entry, without first obtaining the Stockholder’s prior written consent, into any (i) amendment, modification, change or waiver of any provision of the Business Combination Agreement relating to the amount or form of the consideration payable to any of the Company Stockholders in respect of the Merger that is adverse to the Stockholder (in his, her or its capacity as such) or (ii) any amendment or modification (but not waiver) of any condition to the Closing set forth in Section 6.1, Section 6.2 or Section 6.3 of the Business Combination Agreement that is adverse to the Stockholder (in his, her or its capacity as such) in any material respect. Upon termination of this Agreement as provided in the immediately preceding sentence, none of the Parties shall have any further obligations or Liabilities under, or with respect to, this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, (A) the termination of this Agreement in accordance with Section 6(b) shall not affect any Liability on the part of any Party for fraud with respect to any representations or warranties set forth in this Agreement or a willful and material breach of any covenant or agreement set forth in this Agreement prior to such termination, (B) Section 3(b)(i) (solely to the extent that it relates to Section 5.3(a) (Confidentiality) of the Business Combination Agreement) shall survive any termination of this Agreement, (C) Section 3(b)(i) (solely to the extent that it relates to Section 5.4(a) (Public Announcements) of the Business Combination Agreement) shall survive the termination of this Agreement in accordance with Section 6(a), (D) Section 3(b)(ii) (solely to the extent that it relates to Section 8.18 (Trust Account Waiver) of the Business Combination Agreement) shall survive the termination of this Agreement pursuant to Section 6(b), (c) or (d), (E) Section 9 shall survive termination of this Agreement in accordance with Section 6(a), (F) Section 10 shall survive termination of this Agreement in accordance with Section 6(a) and (G) (x) this Section 6, Section 7, Section 8 and Section 14 shall survive any termination of this Agreement and (y) Section 11 through Section 13 and Section 15 through Section 17 (to the extent related to any of the provisions that survive the termination of this Agreement) shall survive any termination of this Agreement.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Stockholder makes no agreement or understanding herein in any capacity other than in such Stockholder’s capacity as a record holder and beneficial owner of the Subject Company Shares[, and not in such Stockholder’s capacity as a director, officer or employee of any Group Company or in such Stockholder’s capacity as a trustee or fiduciary of any Company Equity Plan,][1] and (b) nothing herein will be construed to limit or affect any action or inaction by [such Stockholder][2] // [any representative of such Stockholder serving][3] as a member of the board of directors of any Group Company or as an officer, employee or fiduciary of any Group Company, in each case, acting in such person’s capacity as a director, officer, employee or fiduciary of such Group Company.
8. No Recourse. This Agreement may only be enforced against, and any action for breach of this Agreement may only be made against, the Parties, and without limiting the generality of the foregoing, none of the Representatives of Tailwind or the Stockholder shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, except as expressly provided herein.
9. Disclosure. The Stockholder hereby authorizes the Company and Tailwind to publish and disclose in any public announcement or required SEC disclosure such Stockholder’s identity and ownership of the Subject Company Shares and/or Tailwind Shares, as applicable, and the existence and terms of this Agreement (including, for the avoidance of doubt, the details of such Stockholder’s covenants, agreements, obligations, representations and warranties under this Agreement), subject, in the case of any publication or disclosure pursuant to this Section 9 that names the Stockholder, to the Stockholder’s review and written approval (not to be unreasonably withheld, conditioned or delayed).
1 Language to be included for individual stockholders.
2 Language to be included for individual stockholders.
3 Language to be included for non-individual stockholders.
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10. Mutual Release.
(a) Effective upon the Effective Time, except with respect to a claim pursuant to the Business Combination Agreement or any of the Ancillary Documents to which he, she or it is a party, in each case, on the terms and subject to the conditions therein (and, for the avoidance of doubt, to the extent permitted pursuant to the express terms thereof), the Stockholder, on behalf of himself, herself or itself and his, her or its past, present and future Representatives and any successors, heirs and assigns, including any receiver, any assignee for the benefit of creditors or any trustee under the United States Bankruptcy Code, of any of the foregoing Persons (each, a “Stockholder Releasor”), hereby unconditionally and irrevocably waives, releases and forever discharges Tailwind, Merger Sub, the Company, and the Company Stockholder Representative and each of their past, present and future directors, officers, employees, agents, predecessors, equityholders, partners, insurers and Affiliates and any other Representative of any of the foregoing Persons and any successors, heirs and assigns, including any receiver, any assignee for the benefit of creditors or any trustee under the United States Bankruptcy Code, of any of the foregoing Persons (collectively, the “Releasees”) from any and all Liabilities and claims of any kind or nature whatsoever (collectively, “Claims”), in each case whether at law, in equity or otherwise, absolute or contingent, liquidated or unliquidated, known or unknown, arising from any matter, cause or event occurring prior to the Effective Time, that a Stockholder Releasor presently has, has ever had or may have, in each case, to the extent resulting from such Stockholder’s capacity as the direct or indirect holder of any Equity Securities in the Company prior to the Effective Time, and such Stockholder shall not seek to recover any amounts in connection therewith or thereunder from any Releasee. The Stockholder, on behalf of himself, herself or itself and the Stockholder Releasors, understands that, if the Effective Time occurs, the release of all claims, demands, causes of action and Liabilities to the extent covered by the release contemplated by this Section 10(a) is a full and final release of all such matters, whether or not known, suspected or claimed, through the Effective Time that could have been asserted in any legal or equitable proceeding against any of the Releasees, except as expressly set forth in this Section 10. Notwithstanding anything else to the contrary contained in this Agreement, this release shall not, if it becomes effective at the Effective Time, release (i) any right, title and interest the Stockholder expressly has pursuant to the terms, and subject to the conditions, of this Agreement, the Business Combination Agreement or any Ancillary Document to which the Stockholder is a party (it being understood and agreed that this clause (i) shall not be construed as providing for or otherwise allowing the Stockholder to make any claim hereunder, under the Business Combination Agreement or under any Ancillary Document to which the Stockholder is a party (or otherwise related to the transactions contemplated hereby or thereby) that are not provided for pursuant to the express terms hereof or thereof), (ii) any rights to indemnification or expense advancement pursuant to any statute or governing document of any Group Company, if applicable, or any applicable insurance policy of any Group Company, or any indemnification agreement that is not terminated as of the Closing, (iii) any rights to receive compensation (including wages, salaries and bonuses) and benefits or reimbursement of expenses to which the Stockholder is entitled and that have accrued in respect of any employment with any Group Company or (iv) any rights as an employee, customer or licensor of any Group Company pursuant to any Contract with any Group Company (collectively, the “Stockholder Non-Released Matters”).
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(b) Effective upon the Effective Time, except with respect to a claim pursuant to the Business Combination Agreement or any of the Ancillary Documents to which the Company, Tailwind or any other Releasor is a party, in each case, on the terms and subject to the conditions therein, each of Tailwind and the Company, on behalf of itself and its past, present and future Representatives and any successors, heirs and assigns, including any receiver, any assignee for the benefit of creditors or any trustee under the United States Bankruptcy Code, of any of the foregoing Persons (each, a “Releasor”), hereby unconditionally and irrevocably waives, releases and forever discharges the Stockholder and its past, present and future directors, officers, employees, agents, predecessors, equityholders, partners, insurers and Affiliates and any other Representative of any of the foregoing Persons and any successors, heirs and assigns, including any receiver, any assignee for the benefit of creditors or any trustee under the United States Bankruptcy Code, of any of the foregoing Persons (collectively, the “Stockholder Releasees”) from any and all Claims, in each case whether at law, in equity or otherwise, absolute or contingent, liquidated or unliquidated, known or unknown, arising from any matter, cause or event occurring prior to the Effective Time, that a Releasor presently has, has ever had or may have, in each case, to the extent resulting from such Stockholder’s capacity as the direct or indirect holder of any Equity Securities in the Company prior to the Effective Time, and such Releasor shall not seek to recover any amounts in connection therewith or thereunder from any Stockholder Releasee. The Company and Tailwind, on behalf of themselves and the Releasors, understands that, if the Effective Time occurs, the release of all claims, demands, causes of action and Liabilities to the extent covered by the release contemplated by this Section 10(b) is a full and final release of all such matters, whether or not known, suspected or claimed, through the Effective Time that could have been asserted in any legal or equitable proceeding against any of the Releasees, except as expressly set forth in this Section 10. Notwithstanding anything else to the contrary contained in this Agreement, this release shall not, if it becomes effective at the Effective Time, release any right, title and interest any Releasor expressly has pursuant to the terms, and subject to the conditions, of this Agreement, the Business Combination Agreement or any Ancillary Document to which the Company, Tailwind or any other Releasor is a party (it being understood and agreed that this clause shall not be construed as providing for or otherwise allowing any Releasor to make any claim hereunder, under the Business Combination Agreement or under any Ancillary Document to which the Company, Tailwind or any other Releasor is a party (or otherwise related to the transactions contemplated hereby or thereby) that are not provided for pursuant to the express terms hereof or thereof).
(c) Each of the Stockholder, the Company and Tailwind acknowledges that he, she or it has been advised of the provisions of Section 1542 of the Civil Code of the State of California (“Section 1542”), which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Effective upon the Effective Time, the Stockholder, on behalf of himself, herself or itself and each of the other Stockholder Releasors, (i) hereby waives and relinquishes any rights and benefits that any Stockholder Releasor may have under Section 1542 or any similar statute or common law principle of any jurisdiction and (ii) acknowledges that he, she or it may hereafter discover facts in addition to or different from those that the Stockholder now knows or believes to be true with respect to the subject matter of this release, but it is the Stockholder’s intention to fully and finally and forever settle and release any and all released Claims that do now exist, may exist or heretofore have existed with respect to the subject matter of the release set forth in Section 10(a). In furtherance of this intention, if (and from and after the time that) the releases set forth in Section 10(a) become effective, such releases shall be, and will remain in effect as, full and complete general releases subject to the terms set forth therein notwithstanding the discovery or existence of any such additional or different facts.
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Effective upon the Effective Time, each of the Company and Tailwind, on behalf of itself and each of the other Releasors, (x) hereby waives and relinquishes any rights and benefits that any Releasor may have under Section 1542 or any similar statute or common law principle of any jurisdiction and (y) acknowledges that it may hereafter discover facts in addition to or different from those that the Company or Tailwind now knows or believes to be true with respect to the subject matter of this release, but it is each of the Company’s and Tailwind’s intention to fully and finally and forever settle and release any and all released Claims that do now exist, may exist or heretofore have existed with respect to the subject matter of the release set forth in Section 10(b). In furtherance of this intention, if (and from and after the time that) the releases set forth in Section 10(b) become effective, such releases shall be, and will remain in effect as, full and complete general releases subject to the terms set forth therein notwithstanding the discovery or existence of any such additional or different facts.
11. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by delivery in person, by e-mail (having obtained electronic delivery confirmation thereof (i.e., an electronic record of the sender that the email was sent to the intended recipient thereof without an “error” or similar message that such email was not received by such intended recipient)), or by registered or certified mail (postage prepaid, return receipt requested) (upon receipt thereof) to the other Parties as follows:
If to Tailwind, to: | |||
c/o Tailwind Acquisition Corp. | |||
1545 Courtney Ave. | |||
Los Angeles, CA 90046 | |||
Attention: | Matthew Eby | ||
Email: | [Redacted] |
If to the Company, to: | |||
c/o QOMPLX, Inc. | |||
1775 Tysons Boulevard, Suite 800 | |||
McLean, VA 22102 | |||
Attention: | Jason Crabtree | ||
E-mail: | [Redacted] |
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If to the Stockholder, to the address set forth on the Stockholder’s signature page hereto or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
12. Entire Agreement. This Agreement, the Business Combination Agreement and documents referred to herein and therein constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter of this Agreement, except as otherwise expressly provided in this Agreement.
13. Amendments and Waivers; Assignment. Any provision of this Agreement may be (a) amended if, and only if, such amendment is in writing and signed by the Stockholder and Tailwind and (b) waived if, and only if, such waiver is in writing and signed by the Party against whom such waiver is to be effective. Notwithstanding the foregoing, no failure or delay by any Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assignable by the Stockholder without Tailwind’s prior written consent (to be withheld or given in its sole discretion). Any attempted assignment of this Agreement not in accordance with the terms of this Section 13 shall be void.
14. Fees and Expenses. Except, in the case of Tailwind, as otherwise set forth in the Business Combination Agreement, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including the fees and disbursements of counsel, financial advisors and accountants, shall be paid by the Party incurring such fees or expenses.
15. Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any Party does not perform his, her or its respective obligations under the provisions of this Agreement in accordance with their specific terms or otherwise breaches such provisions. It is accordingly agreed that each Party shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages and this being in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that the other Parties have an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Notwithstanding anything to the contrary herein, in connection with any Proceeding for which Tailwind or the Company is being granted an award of money damages, in no event shall the Stockholder or any of its Affiliates be liable under or in connection with this Agreement, the Business Combination Agreement or any Ancillary Document to which the Stockholder is a party or in connection with the transactions contemplated hereby or thereby for an amount in excess of the value of that portion of the Adjusted Transaction Share Consideration (determined by reference to the Tailwind Share Value) that that has been paid to, or is or would otherwise be payable to, the Stockholder in connection with the transactions contemplated by the Business Combination Agreement; provided, that to the extent the Stockholder is a party to the Bridge Financing Agreement and/or a PIPE Subscription Agreement, nothing in the immediately foregoing sentence shall limit or otherwise affect the Stockholder’s obligation to perform or comply with its agreements, covenants and obligations set forth in the Bridge Financing Agreement or such PIPE Subscription Agreement, as applicable, on the terms and subject to the conditions set forth therein.
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16. No Third Party Beneficiaries. Except as expressly set forth herein, including in Section 10, this Agreement shall be for the sole benefit of the Parties and their respective successors and permitted assigns and is not intended, nor shall be construed, to give any Person, other than the Parties and their respective successors and assigns, any legal or equitable right, benefit or remedy of any nature whatsoever by reason of this Agreement. Nothing in this Agreement, expressed or implied, is intended to or shall create any relationship among the Parties as agents, partners or participants in a joint venture or any similar relationship.
17. Miscellaneous. Sections 8.5 (Governing Law), 8.7 (Construction; Interpretation), 8.10 (Severability), 8.11 (Counterparts; Electronic Signatures), 8.15 (Waiver of Jury Trial) and 8.16 (Submission to Jurisdiction) of the Business Combination Agreement are incorporated herein by reference and shall apply to this Agreement, mutatis mutandis.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed and delivered this Transaction Support Agreement as of the date first above written.
TAILWIND ACQUISITION CORP. |
By: |
Name: | ||
Title: |
[Signature Page to Transaction Support Agreement]
[STOCKHOLDER] |
By: |
Name: | ||
Title: |
Address: | ||
Email: |
[Signature Page to Transaction Support Agreement]
QOMPLX, INC. |
By: | ||
Name: | ||
Title: |
[Signature Page to Support Agreement]
SCHEDULE A
Class/Series Securities | Number of Shares |
Company Series A-1A Preferred Stock | [●] |
Company Series A-1B Preferred Stock | [●] |
Company Series A-2 Preferred Stock | [●] |
Company Series A-3 Preferred Stock | [●] |
Company Series A-4 Preferred Stock | [●] |
Company Common Stock | [●] |
SCHEDULE B
The Stockholders Agreements
Exhibit 99.1
QOMPLX, a Leader in Cloud-Native Risk Analytics, Elects to Become a Public Company Through a Merger with Tailwind Acquisition Corp
Led by Oxford-educated cybersecurity experts from West Point and the Air Force Academy and backed by William P. Foley, II’s Cannae Holdings and other notable investors, QOMPLX is a cloud-native leader in risk analytics that helps organizations quantify, model and predict risk in challenging cybersecurity and insurance domains.
Transaction includes a fully committed PIPE of $180 million anchored by Cannae Holdings with participation from institutional investors including Fidelity Management & Research Company LLC, Hedosophia and RenaissanceRe Ventures Ltd., a subsidiary of RenaissanceRe.
As part of the transaction, QOMPLX is acquiring cyber intelligence and analytics solutions provider Sentar and insurance modeling and actuarial platform Tyche to accelerate its leadership position in risk analytics.
Approximately $1.4 billion estimated post-transaction equity value with up to $280 million in gross cash proceeds to the company after taking into account the acquisitions of Sentar and Tyche.
Investor Call scheduled for March 2, 2021 at 8:30 A.M. ET
Tysons, VA — QOMPLX, a cloud-native leader in risk analytics, and Tailwind Acquisition Corp. (NYSE: TWND), a special purpose acquisition company, today announced that they have entered into a definitive business combination agreement. Upon closing of the transaction, the combined company (the "Company") will operate as QOMPLX and plans to list under the symbol QPLX. The transaction reflects an estimated post-transaction equity value for QOMPLX of approximately $1.4 billion.
QOMPLX helps organizations make intelligent business decisions and better manage risk through its advanced, proprietary risk cloud. Its cloud-native platform rapidly ingests, transforms, and contextualizes large, complex, and disparate data sources in order to help organizations better quantify, model, and predict risk in areas including cybersecurity, insurance, and finance. QOMPLX’s rapid growth has been fueled by its emergence as the global leader in Active Directory and identity security challenges currently plaguing enterprises and government agencies. Its core analytics platform combines inside-out with outside-in views on cyber risk posture alongside powerful streaming analytic detections and continuous monitoring across diverse data sources.
QOMPLX’s pro forma 2021 revenue is expected to be $141M. In 2020, the pro forma company’s go forward revenue base was $96M(E), and the core company had a 139% net revenue retention rate. QOMPLX's rapid organic growth rate was 700%+ from FY19 to FY20. The combined business has more than 95 enterprise and government customers.
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QOMPLX was co-founded by CEO Jason Crabtree and CTO Andrew Sellers. Jason is a former Special Advisor to the Commanding General of the U.S. Army Cyber Command, West Point graduate where he was selected as the First Captain of the Corps of Cadets, a Rhodes Scholar, and combat veteran who served in Afghanistan. Andrew is a U.S. Air Force Academy valedictorian, Truman Scholar, and Iraq War veteran who originally met Jason during their respective graduate fellowships at the University of Oxford. Customers of QOMPLX include a number of the world’s leading technology, financial services, insurance, and professional services companies and the pro forma business extends their customer base into major government entities.
QOMPLX’s unique ability to detect catastrophic attacks on Active Directory and enterprise authentication events using its massively scalable unified analytics platform will continue to drive commercial expansion for cybersecurity operations. The company also serves a more strategic role for clients, leveraging its unique technology platform to collect and process a combination of inside out and outside in data to power superior, and continuously updated, views of cybersecurity risk that better allow the data, operations, finance and risk teams in the enterprise to develop a shared sense of ground truth.
QOMPLX’s deep cybersecurity and insurance domain expertise allows cybersecurity and other telematics data to be leveraged in broader insurance underwriting, exposure management, loss mitigation and risk finance applications. Using technology to better specify risk transfer, model future possibilities, and enable data analytics across the insurance value chain, QOMPLX will lead the coming revolution of better real-time analysis of risk accumulation across portfolios in order to bring novel risk transfer products to market.
William P. Foley, II, Founder and Chairman of Cannae Holdings, said: “We are very excited to announce Tailwind's transaction with QOMPLX and to invest additional capital into this portfolio company as it enters public markets. Cybersecurity and risk management are increasingly fundamental in business and government. QOMPLX uses technology to drive more disciplined business decisions about risk with a financial lens. This is a highly scalable company with real and rapidly growing revenues with formidable domain expertise.”
“Today’s agreement furthers QOMPLX’s mission to help organizations get to “ground truth” in their cybersecurity and risk quantification, risk management and risk finance efforts. Andrew and I founded QOMPLX with the express goal of allowing organizations to make economically rational decisions about cybersecurity and other challenging risks. Exceptional risk programs require continuous monitoring of real world data along with prospective modeling of future scenarios.” said Jason Crabtree, co-founder & CEO of QOMPLX. “Reaching public markets via our partnership with Tailwind expedites QOMPLX’s ability to reach more customers globally and supports our continued development of the core technology platform for mission critical customer applications. With the exceptional Sentar and Tyche domain experts joining QOMPLX, we are poised for growth fueled by extraordinary people, defensible technology, and a strong balance sheet.”
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As part of the business combination, QOMPLX has also entered into definitive agreements to acquire two companies in the cybersecurity and insurance analytics industries to further extend QOMPLX’s leadership positioning as a global leader in risk:
● | Sentar: Sentar is one of the fastest-growing cyber intelligence, analytics and operations solutions providers focused on the National Security sector. The acquisition of Sentar’s decades-long technical and national security sector experience gives QOMPLX greater leverage with cybersecurity and broader analytics offerings, including its premier Active Directory security and authentication attack detection and advanced security data fusion use cases. Sentar and QOMPLX have already begun to partner around industrial control systems security and continuous monitoring using shared expertise and QOMPLX software. The combined company will provide much needed technology and domain expert support to the challenging identity and authentication security gaps in the government as illustrated by Sunburst and SolarWinds. |
● | Tyche: Tyche’s core modeling platform focuses on the complex challenges facing insurers: pricing risks, modeling and reserving capital, and improving efficiency. It offers actuarial software that reduces time and costs framework for insurers and reinsurers to produce critical actionable data for critical commercial and regulatory decision-making. The modeling platform powers Tyche’s core flagship software offerings, which are Tyche Capital Model, Tyche Model Generator, and Tyche Pricing System. Tyche bolsters QOMPLX’s insurance analytics offerings and the combined business will offer more comprehensive insurance underwriting, pricing, risk modeling, capital modeling, and reserving functionality. |
“QOMPLX has developed the most advanced cloud native software when it comes to identity attacks, privilege escalation, and lateral movement detection,” said Philip Krim, chairman of Tailwind Acquisition Corp. “These capabilities are now must have competencies for organizations of all sizes, and the demand for this has crossed a tipping point given recent events like SolarWinds which highlight the gaps in Active Directory and enterprise authentication. QOMPLX is differentiated in its ability to link specific data, security controls, and simulations to financial risk. Jason and Andrew are world class founders who will lead QOMPLX to become the ‘go to’ Risk Cloud for organizations who realize data can quantify and reduce risk in critical areas like cybersecurity and business continuity.”
Transaction Overview
The transaction values QOMPLX at an estimated post-transaction equity value of $1.4 billion at $10.00 per share. It is anticipated that the combined company will receive approximately $280 million of gross proceeds from a fully committed common stock PIPE offering of $180 million, along with approximately $334 million cash held in trust, given approximately $200 million in cash acquisition costs, and assuming minimal redemptions by Tailwind’s existing public stockholders. The PIPE included participation from Cannae Holdings, Fidelity Management & Research Company LLC, Hedosophia and RenaissanceRe Ventures Ltd., a subsidiary of RenaissanceRe.
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QOMPLX’s and Tailwind Acquisition Corp.’s boards of directors have unanimously approved the proposed business combination. Completion of the proposed business combination is expected in mid-2021, subject to approval by Tailwind’s stockholders and the satisfaction or waiver of other customary closing conditions identified in the Business Combination Agreement entered into by QOMPLX and Tailwind Acquisition Corp.
Additional information about the proposed transaction will be provided in a Current Report on Form 8-K to be filed by Tailwind today with the Securities and Exchange Commission and available on www.sec.gov.
Advisors
Jefferies is serving as exclusive financial advisor, sole placement agent on the PIPE, and lead capital markets advisor to Tailwind. Piper Sandler is also serving as capital markets advisor to Tailwind.
Barclays is serving as exclusive financial advisor and capital markets advisor to QOMPLX. Mizuho and William Blair are also serving as capital markets advisors to QOMPLX.
Kirkland & Ellis LLP is acting as legal counsel to Tailwind Acquisition Corp. and King & Spalding LLP is acting as legal counsel to QOMPLX.
Conference Call, Webcast and Presentation Information
Management of QOMPLX and Tailwind will host an investor call on March 2, 2021 at 8:30 A.M. ET to discuss the proposed transaction. The conference call will be accompanied by a detailed investor presentation.
A live webcast of the call will be available to those who register at http://public.viavid.com/index.php?id=143806, and can also be accessed on QOMPLX’s website at https://qomplx.com/investor-relations/ and Tailwind Acquisition Corp.’s website at https://twnd.tailwindacquisition.com/. For those who wish to participate by telephone, please dial 1-877-451-6152 (U.S.) or 1-201-389-0879 (International) and reference the Conference ID 13717158. A replay of the call will also be available via webcast here and at https://twnd.tailwindacquisition.com/news/events.
In addition, Tailwind will file an investor presentation with the SEC as an exhibit to a Current Report on Form 8-K prior to the call, which will be available on the SEC’s website at www.sec.gov and at https://twnd.tailwindacquisition.com/presentations.
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All materials can also be found at https://qomplx.com/news/ and at https://qomplx.com/investor-relations/
About QOMPLX
QOMPLX is the cloud-native leader in risk analytics. We help organizations make intelligent business decisions and better manage risk through our advanced, proprietary risk cloud platform. We are the leaders at rapidly ingesting, transforming, and contextualizing large, complex, and disparate data sources through our data factory, in order to help organizations better quantify, model, and predict risk in areas including cybersecurity, insurance, and finance. Backed by Bill Foley's Cannae Holdings, QOMPLX is co-founded by CEO Jason Crabtree, a former Special Advisor to the Commanding General of the U.S. Army Cyber Command and the Department of Defense, West Point graduate, Rhodes Scholar, and veteran of the War in Afghanistan, and by CTO Andrew Sellers, a U.S. Air Force Academy valedictorian, Truman Scholar, and Iraq War veteran. QOMPLX has entered into a definitive business combination agreement with Tailwind Acquisition Corp. and will be traded on NYSE under the ticker QPLX upon closing of the transaction. For more information visit qomplx.com.
About Tailwind Acquisition Corp.
The Company is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses in the consumer internet, digital media and marketing technology sectors. The Company is led by Chairman Philip Krim, Chief Executive Officer Chris Hollod and Chief Financial Officer Matt Eby. In addition to the members of its management team and board of directors, the Company has assembled an Advisory Board that will help position the Company as the value-add partner of choice for today’s leading entrepreneurs.
About Cannae Holdings
Cannae Holdings, Inc. (NYSE: CNNE) is engaged in actively managing and operating a group of companies and investments, as well as making additional majority and minority equity portfolio investments in businesses, in order to achieve superior financial performance and maximize the value of these assets. Cannae was founded and is led by investor William P. Foley, II. Foley is responsible for the creation and growth of over $140 Billion in publicly traded companies including Fidelity National Information Services (“FIS”), Fidelity National Financial (“FNF”), and Black Knight, Inc. (“BKI”). Cannae’s current principal holdings include Dun & Bradstreet Holdings, Inc. (“DNB”), which recently completed a successful business transformation and IPO. Cannae holds an approximately 18% interest in Dun & Bradstreet or ~76 million shares. Cannae’s second principal holding is Ceridian (“CDAY”), which Foley transformed from a legacy payroll bureau into a leading cloud based provider of human capital management software. Cannae owns approximately 9.5% of Ceridian representing ~14 million shares.
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Important Information and Where to Find It
A full description of the terms of the transaction will be provided in a registration statement on Form S-4 to be filed with the SEC by Tailwind that will include a prospectus with respect to the Company’s securities to be issued in connection with the business combination and a proxy statement with respect to the shareholder meeting of Tailwind to vote on the business combination. Tailwind urges its investors, stockholders and other interested persons to read, when available, the preliminary proxy statement/ prospectus as well as other documents filed with the SEC because these documents will contain important information about Tailwind, QOMPLX and the transaction. After the registration statement is declared effective, the definitive proxy statement/prospectus to be included in the registration statement will be mailed to stockholders of Tailwind as of a record date to be established for voting on the proposed business combination. Once available, stockholders will also be able to obtain a copy of the S-4, including the proxy statement/prospectus, and other documents filed with the SEC without charge, by directing a request to: Tailwind Acquisition Corp., 1545 Courtney Avenue, Los Angeles, California 90046, Attn: Chief Executive Officer. The preliminary and definitive proxy statement/prospectus to be included in the registration statement, once available, can also be obtained, without charge, at the SEC’s website (www.sec.gov).
Participants in the Solicitation
Tailwind and QOMPLX and their respective directors and executive officers may be considered participants in the solicitation of proxies with respect to the potential transaction described in this press release under the rules of the SEC. Information about the directors and executive officers of Tailwind is set forth in Tailwind’s final prospectus filed with the SEC pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the “Securities Act”) on June 8, 2020 and is available free of charge at the SEC’s web site at www.sec.gov or by directing a request to: Tailwind Acquisition Corp., 1545 Courtney Avenue, Los Angeles, California 90046, Attn: Chief Executive Officer. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the Tailwind stockholders in connection with the potential transaction will be set forth in the registration statement containing the preliminary proxy statement/prospectus when it is filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Non-Solicitation
This press release is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of Tailwind, the Company or QOMPLX, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.
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Special Note Regarding Forward-Looking Statements
This press release contains forward-looking statements that are based on beliefs and assumptions and on information currently available. In some cases, you can identify forward-looking statements by the following words: “may,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,” “continue,” “ongoing” or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these words. These statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements to be materially different from the information expressed or implied by these forward-looking statements. Although we believe that we have a reasonable basis for each forward-looking statement contained in this press release, we caution you that these statements are based on a combination of facts and factors currently known by us and our projections of the future, about which we cannot be certain. Forward-looking statements in this press release include, but are not limited to, statements regarding the proposed business combination, including the timing and structure of the transaction, the proceeds of the transaction, the initial market capitalization of the Company and the benefits of the transaction. We cannot assure you that the forward-looking statements in this press release will prove to be accurate. These forward looking statements are subject to a number of risks and uncertainties, including, among others, the ability to complete the business combination due to the failure to obtain approval from Tailwind’s stockholders or satisfy other closing conditions in the business combination agreement. The inability of QOMPLX to consummate the acquisitions of Sentar and Tyche, the occurrence of any event that could give rise to the termination of the business combination agreement (including any even that could give rise to the termination of the transaction agreement for each of Sentar and Tyche), the ability to recognize the anticipated benefits of the business combination, including as a result of a delay in consummating the potential transaction or difficulty in integrating the businesses of Tailwind, QOMPLX, Sentar and Tyche, and other risks and uncertainties, including those to be included under the header “Risk Factors” in the registration statement on Form S-4 to be filed by Tailwind with the SEC and those included under the header “Risk Factors” in the final prospectus of Tailwind related to its initial public offering. Furthermore, if the forward-looking statements prove to be inaccurate, the inaccuracy may be material. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by us or any other person that we will achieve our objectives and plans in any specified time frame, or at all. The forward-looking statements in this press release represent our views as of the date of this press release. We anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this press release.
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Contacts
QOMPLX
investor.relations@QOMPLX.com
703-995-4199
Media:
Lindsey Boyle
qomplx@moxiegrouppr.com
757-254-1123
Tailwind Acquisition Corp.
Team@TailwindAcquisition.com
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Exhibit 99.2
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March 2021 Company Overview |
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Disclaimer This investor presentation (this “Presentation”) is for informational purposes only to assist interested parties in making their own evaluation with respect to the proposed business combination (the “Business Combination”) between Tailwind Acquisition Corp. (“Tailwind”) and QOMPLX, Inc. (the “Company”). The information contained herein does not purport to be all-inclusive and none of Tailwind, the Company or their respective affiliates or representatives makes any representation or warranty, express or implied, as to the accuracy, completeness or reliability of the information contained in this Presentation. This Presentation does not constitute (i) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combination or (ii) an offer to sell, a solicitation of an offer to buy, or a recommendation to purchase any security of Tailwind, the Company, or any of their respective affiliates. You should not construe the contents of this Presentation as legal, tax, accounting or investment advice or a recommendation. You should consult your own counsel and tax and financial advisors as to legal and related matters concerning the matters described herein, and, by accepting this Presentation, you confirm that you are not relying upon the information contained herein to make any decision. The distribution of this Presentation may also be restricted by law and persons into whose possession this Presentation comes should inform themselves about and observe any such restrictions. The recipient acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material, non-public information concerning a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities, and (b) familiar with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Exchange Act"), and that the recipient will neither use, nor cause any third party to use, this Presentation or any information contained herein in contravention of the Exchange Act, including, without limitation, Rule 10b-5 thereunder. This Presentation and information contained herein constitutes confidential information and is provided to you on the condition that you agree that you will hold it in strict confidence and not reproduce, disclose, forward or distribute it in whole or in part without the prior written consent of Tailwind and the Company and is intended for the recipient hereof only. Forward-Looking Statements Certain statements in this Presentation may be considered forward-looking statements. Forward-looking statements generally relate to future events or Tailwind’s or the Company’s future financial or operating performance. For example, projections of future Adjusted EBITDA, Adjusted Gross Profit and other metrics are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “may”, “should”, “expect”, “intend”, “will”, “estimate”, “anticipate”, “believe”, “predict”, “potential” or “continue”, or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward looking statements. These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by Tailwind and its management, and the Company and its management, as the case may be, are inherently uncertain. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: (1 the occurrence of any event, change or other circumstances that could give rise to the termination of negotiations and any subsequent definitive agreements with respect to the Business Combination; 2 the outcome of any legal proceedings that may be instituted against Tailwind, the combined company or others following the announcement of the Business Combination and any definitive agreements with respect thereto; 3 the inability to complete the Business Combination due to the failure to obtain approval of the shareholders of Tailwind, to obtain financing to complete the Business Combination or to satisfy other conditions to closing; 4 changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the Business Combination; 5 the ability to meet stock exchange listing standards following the consummation of the Business Combination; 6 the risk that the Business Combination disrupts current plans and operations of the Company as a result of the announcement and consummation of the Business Combination; 7 the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; 8 costs related to the Business Combination; 9 changes in applicable laws or regulations; 10 the possibility that the Company or the combined company may be adversely affected by other economic, business, and/or competitive factors; 11 the inability of the Company to execute and complete the acquisitions of Sentar and Tyche and realize the expected benefits of those acquisitions within the time periods expected for any reason; 12 inaccuracies for any reason in the estimates of expenses and profitability and projected financial information for the Company, Hyperion Gray, Sentar and Tyche; and 13 other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in Tailwind’s final prospectus relating to its initial public offering dated September 3, 2020. Nothing in this Presentation should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither Tailwind nor the Company undertakes any duty to update these forward-looking statements. Non-GAAP Financial Measures This Presentation includes certain financial measures not presented in accordance with generally accepted accounting principles (“GAAP”) including, but not limited to, Adjusted EBITDA and Adjusted Gross Profit. These non-GAAP financial measures are not measures of financial performance in accordance with GAAP and may exclude items that are significant in understanding and assessing the Company’s financial results. Therefore, these measures should not be considered in isolation or as an alternative to net income, cash flows from operations or other measures of profitability, liquidity or performance under GAAP. You should be aware that the Company’s presentation of these measures may not be comparable to similarly-titled measures used by other companies. 1 |
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Disclaimer (Cont’d) The Company believes these non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to the Company’s financial condition and results of operations. The Company believes that the use of these non-GAAP financial measures provides an additional tool for investors to use in evaluating ongoing operating results and trends in and in comparing the Company’s financial measures with other similar companies, many of which present similar non-GAAP financial measures to investors. These non-GAAP financial measures are subject to inherent limitations as they reflect the exercise of judgments by management about which expense and income are excluded or included in determining these non-GAAP financial measures. Please refer to footnotes where presented on each page of this Presentation or to the appendix found at the end of this presentation for a reconciliation of these measures to what the Company believes are the most directly comparable measure evaluated in accordance with GAAP. This Presentation also includes certain projections of non-GAAP financial measures. Due to the high variability and difficulty in making accurate forecasts and projections of some of the information excluded from these projected measures, together with some of the excluded information not being ascertainable or accessible, the Company is unable to quantify certain amounts that would be required to be included in the most directly comparable GAAP financial measures without unreasonable effort. Consequently, no disclosure of estimated comparable GAAP measures is included and no reconciliation of the forward-looking non-GAAP financial measures is included. Use of Projections This Presentation contains financial forecasts with respect to the Company’s projected financial results for the Company's fiscal years 2020 through 2024. Further, certain of these projected financial results give pro forma effect to the Company’s acquisition of Hyperion Gray and its proposed acquisitions of Sentar and Tyche. The Company's independent auditors have not audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, they did not express an opinion or provide any other form of assurance with respect thereto for the purpose of this Presentation. These projections should not be relied upon as being necessarily indicative of future results. The assumptions and estimates underlying the prospective financial information are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the prospective financial information. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of the Company, on a stand alone or a pro forma basis for its acquisitions of Sentar, Tyche and Hyperion Gray, or that actual results will not differ materially from those presented in the prospective financial information. Inclusion of the prospective financial information in this Presentation should not be regarded as a representation by any person that the results contained in the prospective financial information will be achieved. Industry and Market Data In this Presentation, Tailwind and the Company rely on and refer to certain information and statistics obtained from third-party sources which they believe to be reliable. Neither Tailwind nor the Company has independently verified the accuracy or completeness of any such third-party information. Additional Information Tailwind intends to file with the SEC a Registration Statement containing a proxy statement/prospectus relating to the proposed Business Combination, which will be mailed to its shareholders once definitive. This Presentation does not contain all the information that should be considered concerning the proposed Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the Business Combination. Tailwind’s shareholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the proposed Business Combination, as these materials will contain important information about the Company, Tailwind and the Business Combination. When available, the definitive proxy statement/prospectus and other relevant materials for the proposed Business Combination will be mailed to shareholders of Tailwind as of a record date to be established for voting on the proposed Business Combination. Shareholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to: Tailwind Acquisition Corp., 1545 Courtney Avenue, Los Angeles, California. Participants in the Solicitation Tailwind and its directors and executive officers may be deemed participants in the solicitation of proxies from Tailwind’s shareholders with respect to the proposed Business Combination. A list of the names of those directors and executive officers and a description of their interests in Tailwind is contained in Tailwind’s final prospectus relating to its initial public offering dated September 3, 2020, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to Tailwind Acquisition Corp., 1545 Courtney Avenue, Los Angeles, California. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the proposed Business Combination when available. The Company and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of Tailwind in connection with the proposed Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed Business Combination will be included in the proxy statement/prospectus for the proposed Business Combination when available. Trademarks This Presentation contains trademarks, service marks, trade names and copyrights of Tailwind, the Company and other companies, which are the property of their respective owners. 2 |
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Overview of Tailwind Acquisition Corp. Tailwind At A Glance Purpose-built to support visionary founders Approximately $334M held in trust Key Differentiators Built by founders and operators for founders and operators Significant track record of scaling public and private companies QOMPLX Is An Ideal Partner For Tailwind Meeting Our Key Acquisition Criteria Differentiated & High Growth Large & Growing TAM Long-Term Customer Relationships Substantial Upside Compared to Peers Best-in-Class Management Team Mission Critical, Embedded Solutions Management Board of Directors Chris Hollod CEO Founder and Managing Partner of Hollod Holdings Philip Krim Chairman Co-Founder and CEO of Casper Sleep (NYSE: CSPR) Alan Sheriff Director Vice Chairman of Institutional and Corporate Banking, PNC Financial Services Group; Co-Founder and former Co-CEO of Solebury Capital Will Quist Director Partner at Slow Ventures Wisdom Lu Director Founding Partner of Stibel & Co. and Bryant Stibel Matt Eby CFO Co-Founder and Managing Partner of Tengram Capital Partners Former President at Expedia Group (NYSE:EXPE) 3 |
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Transaction Summary($Millions) Pro Forma Valuation QOMPLX Illustrative Share Price$10 (6) Equity Value1,448 ▪Net Debt 6$274 Enterprise Value$1,173 TEV / 2021E Revenue ($141M TEV / 2022E Revenue ($210M 8.3x 5.6x Source of Funds Uses of Funds Pro Forma Ownership % @ $10 / Share (5) Cash Held in Trust2$334 QOMPLX Equityholder Consideration1$850 ■ Issuance of Tailwind Equity1 850 Est. Transaction Fees & Expenses40 Acquisition of Sentar & Tyche4200 PIPE Investors 3130■ Total Uses$1,364 Total Sources$1,364 4 |
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Today’s Presenters Risk and cybersecurity specialist, author, inventor; co-founder of QOMPLX in 2015 Previously Special Advisor to Commanding General US Army Cyber Command after serving as Ranger qualified infantry officer in Afghanistan B.S. in Engineering from U.S. Military Academy at West Point, First Captain and Brigade Commander of the Corps of Cadets Rhodes Scholar with graduate research degree from the University of Oxford in AI-driven engineering design and optimization Supports go-to-market executive team members MBA from the Wharton School of the University of Pennsylvania Previously ran business operations, implemented data analytics and led financial management activities within the Department of Defense Joined QOMPLX after retiring as a Major General over a 32-year career in the U.S. Army 5 |
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Category-Defining Cloud Platforms 1995 2004 2005 2011 2015 As data gets cheaper, attention gets more expensive - is an effective filter and lens through which to view critical decisions. 6 |
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Introduction to QOMPLX Who We Are The cloud-native leader in risk analytics What We Do We help organizations make intelligent business decisions and better manage risk through our advanced, proprietary analytics platform How We Do It We are the leaders at rapidly ingesting, transforming, and contextualizing large, complex, and disparate data sources through our data factory, in order to help organizations better quantify, model, and predict risk in areas like cybersecurity, insurance, and finance We Serve Global Leaders1 (1)Pro forma company exemplary clients 7 |
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Positioned At The Nexus Of The Most Important Trends In Technology 8 |
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Our History Founded to democratize data-driven decision-making with scalable distributed systems Open Platform (2021 Direct access of core data platform for broad set of risk categories Insurance (2019 Adjustably automated underwriting, insurance telematics, risk modeling and data science Cloud Security Telematics (2018 Data, models, logs, and application analytics for hybrid cloud Active Directory (On Premise) → Cloud Identity → Virtual Identity One platform Universally accessible Deployed globally Operating at scale Common data fabric, data integration, unified storage and search, and rich data orchestration 9 |
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QOMPLX Cloud-Native Risk Platform 10 |
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Recent and Targeted Acquisitions Strengthen QOMPLX Platform 11 |
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46% FY21E PF Revenue Growth Sustainable & Fast Growth 98 Customers Robust Customer Base 77% Recurring Revenue 1 Predictable Revenue $160B TAM Massive Addressable Market 114% Net Revenue Retention Rate2 Strong Retention 136% in Commercial Business) QOMPLX at a Glance QOMPLX Enables Organizations To Integrate Data To Drive Better Risk-Weighted Decisions $141M FY21E PF Revenue Significant Scale Note: Financials reflect pro forma entity for Hyperon Gray, Sentar and Tyche acquisitions. Fiscal year ends on 12/31. Defined as any revenues related to a contract over 1 year in length. Calculated as beginning recurring revenue plus expansion/price increases minus churn, divided by beginning recurring customer revenue. 12 |
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The Amount Of Data Flowing Into The Enterprise Has Changed Enterprises Used To Measure Their Data In Terabytes… …Now They Measure In Petabytes… …And Growth Is Accelerating 26% CAGR Total Volume Of Global Data Created Per Year (Zettabytes) 1 IDC, Worldwide Datasphere Forecast, 2020.13 |
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Model / Data Explosion & Variety 70% 80% Amount of Data That is Unstructured (1) Noise Drowns out the Signal Architectural Complexity & Interconnectedness 89 Vendors Interacting with a company’s network every week (3) Concentration of Physical & Virtual Risks New, Embedded Economic Decisions in Operations Costs of Data Breaches $1T Cybercrime costs in 2020 (2) Organizations Need A Risk Platform That Spans The Enterprise Risk Platform for timely and informed decision-making at scale IDC, WekaIO Redefining What Digitally Transforming Enterprises Should Expect from Unstructured Storage Platforms, 2021. McAfee, The Hidden Costs of Cybercrime, 2020. Bomgar, Vendor Vulnerability, 2016. 14 |
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$11.6B IT Operations Management 4 8%+ YoY $164.2B 10% YoY Total Addressable Market 8%+ YoY $46.7B Cyber Software 1 11%+ YoY $66.8B Big Data & Analytics Software 2 11%+ YoY $39.1B Insurance Analytics 3 Gartner, Forecast Analysis: Information Security and Risk Management, Worldwide, 2020. IDC, Worldwide Big Data and Analytics Software Forecast, 2020. RBC Cyber Insurance, Munich Re, 2020; Global Insurance Telematics Market, Kenneth Research, 2019; Kenneth Research, 2020. IDC, Worldwide IT Operations Management Software Forecast, 2020. 15 |
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A Secure Cloud-Native Architecture Is Required 16 |
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QOMPLX: The Data Factory for Risk Driving Enterprise Data Flow Programming at Scale with Q:OS Inputs Licensed Sources Market, Financial & Alternative Data Internal Data Contractual, Enterprise & Network Data, Emails, Calendar, IT & Security Profiles Public Sources News, Events, Social Media, Logistics, Macroeconomic Data, Real Estate, Weather, Location, & Natural Hazards Outputs Data Sets Rules Models Algorithms Simulations Alerts Suggestions Decisions Data Ingest Workflow AutomationDatasets & Analytics Cloud Provider FlexibleLarge-Scale Cloud I/OWeb Crawling Domain-agnostic core technology can extend to operate or partner in any specific application vertical to drive advantage 17 |
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Our Core Data Factory Is Our Competitive Advantage Unified Analytics Infrastructure - Common Authentication Access Control, Permissions, Provenance ■ ■ DATA SOURCES■ ■ Databases ■ Enterprise Applications■ Third-Party APIs APM and Log Data IOT Unstructured & Web Data■ ■ ■ ■ ■ ■ CONSUMERS ■ Real-Time Analytics Ad Hoc Data Science Model and Data Marketplace ■ ■ ■ ns at Scale ■ ■ ■ ■ ■ ■ ■ ■ |
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How it Started How it’s Going July 9, 2015 Jan 12, 2021 QOMPLX has been developing the most comprehensive solution for Active Directory/Kerberos and SAML authentication security since 2015. ompany Raises New Red Flags. |
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The QOMPLX Risk Cloud – Applied to Cyber Security Privilege Assurance (PA Attack Modeling & Analysis Fusion & Analytics Structured & Unstructured Data Ingest Analyze Model Persist Cloud Security Threat Detection & Analytics Investigation & Response Marketplace Data + Models + Connectors Risk Cloud Identity Assurance (IA On-Premise Authentication Validation & Analytics Hybrid Cloud Architecture Extensions Managed Analytics Managed Identity Assurance & Privilege Assurance External Exposure Monitoring Managed Detection & Response (MDR Risk Monitoring Risk Quantification Posture Scan & Score Network Risk Score & Resilience Score Cyber Data Enrichment 20 |
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Why We Win Product Dimensions Our CompanyCompetitors SECURITYANALYTICS PLATFORMINSURANCE InfrastructureConfigurable infrastructure to build scalable and flexible data workflows Lack declarative framework for rapid and effective specification of data flow and processing Cyber SecurityDetect and respond to attacks on critical infrastructure with rich context The premier authentication security solution for Active Directory and cloud identity attacks with both detections and stateful protocol validation Static and inflexible solutions - siloed views lack scalability, timeliness and context Noisy or ineffective detections for lateral movement - no ability to validate authentication protocols Cyber InsuranceFlexible combination of outside-in and inside-out risk metrics combined with rich breach, threat, and exposure data Competitor solutions have disproportionate dependence on poor proxies for risk Risk EconomicsEconomic modeling of risk mitigation, response and finance for 21 Fail to embrace sound quantitative probabilistic models when balancing anticipatory and reactive investments |
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23 Market Entry Strategy Establish Lighthouse Accounts Across Industries We Know How To Sell Internationally And Are Already Doing It 22 |
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Our Go-To-Market Strategy Multi-Faceted Approach To High-Velocity, Low-Friction Distribution Exper tise Proven Sales Model - Organized Around Domain Expertise GTM Accelerators Go to Market Partnerships C Level Majors Divisions Frictionless Test Flights Technology Marketplace Integrations Industrial Experts Financial Services Aerospace & Defense Government Manufacturing & Logistics Healthcare Distributors and Referrals Live Cyber Ranges & Analytics Demonstration Cases Midmarket Marketplace Geographic Coverage North America Europe Asia Pacific Middle East & North Africa South America Rank and File 23 |
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Multiple Vectors For Rapid Growth Expand Geographically Marketplace For Data, Models, And Simulations Expand Into New Verticals Acquire New Customers Expand Within Our Existing Customers Grow LogosUpsellBroaden OfferingsExtend Reach 24 |
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Customers adopt additional products from our unified platform Unique mix of domain agnostic and specialized cyber and insurance offerings with deep differentiation Integration ecosystem with other enterprise tools Universal data and model access, lineage, and control New Product Adoption We expand as customers grow their cloud workloads We enable self-service, frictionless expansion Easy to grow usage under hybrid SaaS and utility computing model Self-guided trials Cloud-based test ranges for validation Easy to adopt Short time to value Frictionless Usage Expansion 25 |
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QOMPLX Customer Case Studies Global Professional Services Firm Customer Journey: 2018 Initial Cyber Contract for Identity and Privilege Analytics 2019 Renewed contract and added additional scope 2020 Account expansion as strategic security analytics and operations provider – increasing data processing and managed detection and response footprint globally 2021 Additional expansion to support acquisitions and integration efforts Cyber data collection, integration, analytics and data persistence Active Directory and identity/privilege security analytics, risk assessment, and monitoring External and internal tech-driven security posture monitoring Identification, prioritization and quantification of cyber and technology risks and scenarios 26 |
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QOMPLX Customer Case Studies (Cont’d) Fortune 500 Insurance Firm Customer Journey: 2019 Identity Analytics and Managed Identity Assurance 2020 Multiple contract expansions for Analytics, External Posture, and Security Assessments/Monitoring Utilizes detailed QOMPLX tech-driven security assessments and posture (internal and external) to better evaluate acquisition targets Reduce overall security spend by evaluating and remediating cyber risks using scenario-based stochastic risk models Automated 247 analytics with expert add-on monitoring by QOMPLX frees up scarce internal resources and leverages specialized domain expertise 27 |
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Senior Executive Team Executive Team Andrew Sellers CTO / Founder John Ferrari CFO / CAO CEO / Founder Go-To-Market Leadership Andrew Jaquith Chief Information Security Officer & GM, Cyber Conan Ward President & GM, Rubiqon & Insurance Operations Alastair Speare-Cole President & GM, Insurance Analytics Alun Marriott* Managing Partner, Tyche Darren Kraabel* President, Sentar Common Core Business Functions Randy Clayton Chief Delivery Officer Abha DasGupta Chief Strategy Officer Chad Kite Vice President, Sales opleVice President, Applied Research Richard Kelley 28 |
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Financial Overview 29 |
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Financial Highlights 1Highly Durable, Recurring and Predictable Revenue Model 2Multiple Drivers of Sustainable Organic Growth 3Scalable Cost Structure With Structural Operating Leverage 4Visible Path to Near-Term Profitability 5Platform for M&A To Drive Scale and Distribution Advantages 30 |
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8.5x QOMPLX Standalone Business Momentum 3.6 CAC Payback (Months)1 0% Churn Rate1 139% Net Revenue Retention (NRR 12 75% Organic Revenue Growth FY21E3 Gross Margin (FY21E3 Note: Fiscal year ends on 12/31. 1 For calendar year ending 12/31/2020 2 Calculated as beginning recurring revenue plus expansion/price increases minus churn, divided by beginning recurring customer revenue. 31 |
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98 QOMPLX Pro Forma Key Metrics 7 7% Recurring Revenue(1) $4.1M Avg. Revenue Per Customer (Top 20 46% FY21E PF Revenue Growth 114% Net Revenue Retention Rate(2) 136% in Commercial Business) 4.2 Years Avg. Tenure of Customer Top 203) Note: Financials reflect pro forma entity for Hyperon Gray, Sentar and Tyche acquisitions. Fiscal year ends on 12/31. Defined as any revenues related to a contract over 1 year in length. Calculated as beginning recurring revenue plus expansion/price increases minus churn, divided by beginning recurring customer revenue. Based on recurring revenue from customers. 32 |
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Industry-Leading Growth and Increasing Profitability($Millions) Pro Forma RevenueAdjusted Gross Profit 1Adjusted EBITDA 2 % Revenue Growth% Margin% Margin 45% 46% 49% 44% 39% 39% 47% 56% 62% 69% 12% 10%7% 20% 30% Note: Financials reflect pro forma entity for Hyperon Gray, Sentar and Tyche acquisitions. Fiscal year ends on 12/31. 33 (2) (3)2022E 2024E CAGR. |
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Attractive Long-Term Financial Profile Financial Metrics Overview 10%Adjusted EBITDA Margin 230% Source: Company provided financials (1) (2) 34 |
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6% % 35 Selected Public Comparables – Operating KPIs |
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Appendix - Market Comparables 36 |
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Selected Public Comparables – Operating Metrics CY2021E & CY2022E Revenue ($Millions) CY2021E & CY2022E Revenue Growth Source: Company filings, Wall Street research and Capital IQ as of 2/26/21. Note: QOMPLX metrics reflect pro forma entity for Hyperion Gray, Sentar and Tyche acquisitions. 1 C3.ai metrics represent fiscal years 2022E and 2023E which ends in April 2022 and April 2023. 37 |
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Selected Public Comparables Operating and Valuation Metrics CY2021E & CY2022E Gross Margin CY2021E & CY2022E EV/Revenue Source: Company filings, Wall Street research and Capital IQ as of 2/26/21. Note: QOMPLX metrics reflect pro forma entity for Hyperion Gray, Sentar and Tyche acquisitions.Multiples are shown on a fully diluted basis. (1) 2022 and April 2023. 38 |
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Appendix - Additional Product Details 39 |
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QOMPLX Technology + Sentar Distribution & Delivery Healthcare Security & Connected Medical Devices Operational Technology & Industrial Controls Exemplary Historical Work Cyber operations and intelligence domain experts Insider threat, vulnerability management, and security operations Mission resilience – planning for, responding to, and recovering from attacks Opportunity QOMPLX platform opportunities for data and cyber security Cybersecurity for healthcare – tech and managed offerings transferable to private industry Connected medical devices for providers and for consumers poised for massive growth and require QOMPLX’s unified analytics platform Exemplary Historical Work Determination and mitigation of cybersecurity risk to missions across defense and critical infrastructure Security control assessment and implementation for IT and OT networks Opportunity Continuous operational technology systems security assessment and monitoring using QOMPLX risk cloud Commercial ICS/OT monitoring services – managed and automated Forward deployable QOMPLX OS for isolated and classified networks supporting converged IT, OT and operational analytics 40 |
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QOMPLX Tech/Operations + Tyche Analytics and Delivery and Life Insurers and ReinsurersInsurance Intermediaries, Distributors, and Regulators Exemplary Historical Work Provide software to enable insurance clients to transform their internal business processes including those surrounding capital, pricing, reserving, valuation and risk Faster integrated approach to capital modeling and pricing with faster execution, less operational risk, more functionality and less cost Low-code/no-code flow editors + scripting with cloud-based execution Opportunity QOMPLX platform allows Tyche actuarial modeling tools to be paired with data science tools like Python, R, and Scala Full integration with QOMPLX risk cloud with future elastic scaling and adjustably automated underwriting Broader integration of alternative and third-party data for insurance Exemplary Historical Work Streamlining pricing, capital and other actuarial modeling tasks to reduce transaction costs and timelines Robust capital modeling and pricing foothold as a “core” risk cloud component Opportunity Expanding into general data analytics, orchestration and storage of insurance and risk finance using QOS risk cloud Expansion into capital modeling for non-insurance financial services use cases including banking via QOMPLX sales channels Linking risk selection, pricing, capital modeling and catastrophic risk modeling into the single unified QOMPLX risk cloud 41 |
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RubiQon Is A Case Study in Data-Driven Risk Finance Telematics Driven Risk Assessment, Control And Finance In Cyber – Illustrates The Strategy Demonstrating Progressively More Effective And Accurate Approaches With Increasing Levels Of Visibility 42 |
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Product Examples QCyber - Privilege Analytics, Identity Analytics, Data Fusion and Risk Modeling 43 |
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Product Examples QInsurance Underwriting and Exposure/Loss Analytics 44 |
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Product Examples Ad Hoc Analytics with Integrated Scratchpads 45 |
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Product Examples QSIM Integrated Simulation and Modeling 46 |
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48 Supplemental Slides Exemplary Use Cases & Background 47 |
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Five Nightmares – One Common Thread Almost all large-scale breaches have something in common: ABUSE OF PRIVILEGES and CREDENTIALS Ransomware/Extortion Threats to leak data leveraging cryptography and takeover of highly privileged accounts Business Risk Drivers Service Culture Availability > Security Integration > Security Cloud migration and scalable cloud computing SaaS delivery and the integrated SaaS supply Chain Pandemic Response Software Lifecycle Changes Continuous integration, continuous deployment, and microservices DevOps → Dev Sec Ops “Credentials are the Firewall” Trust in Identity and Authentication 48 |
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Toxic data spill Attacker steal millions of customer records, resulting in large fines and reputation damage CASE STUDY COULD IT HAPPEN TO YOU? Attackers exploited Marriott with a remote access trojan (RAT.1. After gaining access, Mimikatz was likely used to gain domain admin access Attackers stole 380 million Starwood guest records, including those from 30 million EU citizens; 18 million encrypted passport numbers; and 9 million encrypted payment card numbers. At time of discovery, attackers had been resident in Marriott’s system for four years In August 2019, Marriott took a charge of $126M for the cost of the breach.2 The UK Information Commissioner also fined Marriott €110 million. Do you monitor for outbound connections including keeping DNS and proxy logs? Have you hardened Active Directory? If not, tactics similar to those used with Marriott, post-exploit, will be difficult to detect. Do you understand the security posture of recently acquired subsidiaries? You may be inheriting their weaknesses. Do you continuously monitor Kerberos and enterprise authentication events? 49 |
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Catastrophic asset damage A mass ransomware attack spreads swift ly across t he networks and destroys systems CASE STUDY COULD IT HAPPEN TO YOU? Victim of the NotPetya ransomware campaign NotPetya bundled Mimikatz to extract Active Directory credentials and gain admin access The attack destroyed most of Maersk’s IT networks, destroying 49,000 laptops, 3,500 out of 6,200 servers, 1,000 out of 1,200 applications, achieving “100% destruction of anything based on Microsoft that was attached to the network”1 Resulted in $300M in damages Is your network segmented? Flat networks have few compartments to limit mass ransomware attacks. Have you minimized Active Directory trusts? You may trust admins from domains with poor security practices. Have you hardened Active Directory? If not, attacks similar to the NotPetya campaign will be difficult to detect in time. Commentary QOMPLX Identity Assurance protects against the type of credential attacks used against Maersk - including extremely difficult to detect Kerberos-based attacks on authentication. 50 |
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Large-scale data dump An external attacker or privileged insider downloads sensitive information in bulk CASE STUDY COULD IT HAPPEN TO YOU? Employee data theft Over a 9 month period, an Anthem employee stole 18,000 members’ personal health information, emailing them a personal account. Employee that had been stealing and misusing Medicaid member data since as early as July 2016 Data was exfiltrated via email Data included Medicare ID numbers, Social Security numbers, Health Plan ID numbers, names of members, and dates of enrollment Do you have many highly privileged Windows administrators with significant access? Do you have critical IT staff who could be targets for potential bribery or extortion? Do you implement a robust Data Loss Prevention (DLP program? Commentary QOMPLX Privilege Assurance identifies weaknesses in your Active Directory environment, including misconfigurations, over privileged users and accounts, and dangerous trust relationships. 1.“The Insider Threat: Protecting Your Company from Itself”, https://www.securitymagazine.com/articles/90237-the-insider-threat-protecting-your-company-from-itself 51 |
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Subsidiary security incident A cyber attack on newly-acquired subsidiary damages its parent’s reputation CASE STUDY COULD IT HAPPEN TO YOU? FedEx expanded into new geographic markets by acquiring Netherlands-based TNT Networks in 2016. It also inherited all of TNT’s operations, technology assets… and security weaknesses. In June 2017, TNT fell victim to the NotPetya worldwide ransomware campaign. NotPetya bundled Mimikatz to extract Active Directory credentials and gain admin access The attack shut down TNT Express’s domestic and international freight operations for an extended period, resulting in $300M in damages. Significantly, media headlines refer to the attacks on FedEx TNT, not “TNT.” Has your firm acquired subsidiaries? Your reputation is only as secure as your least-secure subsidiary. Do you understand all of your predecessor firms’ security risks and technical debt? Have you hardened Active Directory? If not, attacks similar to the NotPetya campaign will be difficult to detect or stop. Do you have continuous monitoring in place for authentication protocols like Kerberos? Commentary:QOMPLX Identity Assurance protects against credential attacks like those used against FedEx TNT. Turn key detections include Golden Ticket, Silver Ticket, DC Sync, DC Shadow, Kerberoasting, ntds.dit extraction, pass the ticket, pass the hash, and over pass the hash. 52 |
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Rogue Administrators Data breaches by privileged insiders or by compromising over-privileged employees CASE STUDY COULD IT HAPPEN TO YOU? Employee data theft Over a 9 month period, an Anthem employee stole 18,000 members’ personal health information, emailing them a personal account. System administrator: a rogue City of San Francisco sysadmin was fired; the disgruntled employee locked city records containing email, payroll, and police records. Privileged user: an ex-employee at Google Waymo left the company with 14,000 documents including trade secrets on autonomous driving. Trusted third party A refrigeration contractor of Target was hacked and the trust established was exploited and hackers were able to laterally navigate Target’s network . Do you have many highly privileged Windows administrators with significant access? Do you enforce “least privilege” principles, and uniformly monitor access? Many employees amass significant privileges over time. Do you regularly review their application and systems entitlements? Commentary: QOMPLX Privilege Assurance helps identify overlooked Windows trusts and risky concentrations of privileges held by employees, so that a bad breach won’t grow into a catastrophic one. Limiting the BlastRadius is now a key aspect of responsibly managing identity. 53 |
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Defense actions Exemplary vendors QOMPLX solutions How QOMPLX disrupts catastrophic attacks QScan, Privilege Assurance and QAssess help customers identify and reduce their attack surfaces well before a breach. Identity Assurance sits at the critical choke point common to all large breaches—privilege escalation and lateral movement. Fusion capabilities integrate and contextualize data feeds across multiple speciality vendors. Lateral movement detection Identify download and installation attack planning attack Privilege and attack surface reduction Protect Detect Respond Recover Critical infrastructure hardening Network Security Monitoring 54 |
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Identity Assurance targets fundamental security gaps IA defense against catastrophic attacks by ensuring authentication can be trusted CrowdStrike, Chief Executive George Kurtz “The threat actor took advantage of systemic weaknesses in the Windows authentication architecture, allowing it to move laterally within the network” 1 Shorten dwell time. Shorten attacker’s dwell time with timely detection in minutes or hours rather than weeks or months as attackers move laterally Enhance the value of existing security tools. Reduce the load on existing security tools including log management, security and incident management, and endpoint detection QOMPLX’s Identity Assurance module iand the only 1 “SolarWinds, Microsoft, FireEye, CrowdStrike Defend Actions in Major Hack - U.S. Senate Hearing” 55 |
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Enterprise Authentication = Today’s Biggest Security Risk Even Microsoft admits huge problems; proposed solution of just “buy our cloud” doesn’t address issue https://docs.microsoft.com/en-us/security/compass/esae-retirement Change announced after Solarwinds Breach Announcement Raising questions about hybrid-cloud security “serves the broader Microsoft narrative,” Deepak Patil, a senior vice president of Dell Technologies’ cloud business and former Microsoft cloud executive, told the Journal. “But the reality is, look at a majority of customers, their workloads are running on-prem.” https://www.wsj.com/articles/solarwinds-hack-pits-microsoft-against-dell-ibm-over-how-companies-store-data-11614456066 55 zure AD... |
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Stop the Zero Trust Marketecture - Identity Matters Zero Trust is really about 100% trust in authentication protocols and identity providers 2014 2020 It's also too hard to run (cloud software) Azure ID securely, and the complexity of the product creates many opportunities for attackers to escalate privileges or hide access. 55 57 |
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Privilege Assurance PA protects the heart of your Windows domain network—Active Directory (AD Find risks in AD. Identify over-privileged accounts. Identify and monitor accounts in close proximity to sensitive domain administrator accounts. Identify stale accounts and machines. Find end-of-life assets running Windows OSes that can’t be be patched. Visualize risks. In a graph, see blast radius, lateral movement pathways, and attack vectors—to help teams harden Active Directory and to assist security and incident response operations. See AD through an attacker’s eyes through one-hop analysis, attack path planning, and “blast radius” visualization Create analytics for the cybersecurity risk management program. Capture critical forensic data on your Active Directory environment for investigations and audits. Cloud identity privilege management extensions for investigations, monitoring, and audits spanning across Active Directory into select cloud providers coming soon.. 58 |
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Q:CYBER Offerings - Driving down Risk QSCAN External – Non-invasive External Exposure and Security Posture Monitoring Cybersecurity External Assessment, 1st Party Assessment of 3rd Party & Supply Chain Cloud identity attack detection expansion capabilities Identity Assurance Internal - Defensive Kerberos Attack Detection and Stateful Protocol Validation to Stop Credential Forgeries Streaming Analytics for Heuristic Detections API, syslog, & Certified Integrations Privilege Assurance Internal - Proactive Monitor/Manage Access & Privilege Mapping Privilege and Credentials to inform Cyber Risk Metrics Exposure Assessment Fusion and Risk Strategic & Responsive Multisource log search and analytics Data Fusion and Model-drive Security (Rules, Stats, ML and AI Support Managed Detection and Response Strategic Risk Programs 59 |
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A Study in Risk Driven Security Challenge Solution Our client was performing due diligence on an acquisition. QOMPLX was asked to understand the security posture and risks of the prospective acquisition. Our reconnaissance indicated multiple severe exposures posing significant risk to the business. We assessed (and the buyer agreed) that the firm was at high risk of a significant cyber breach or ransomware event. Outcome With QCYBER, all Active Directory domain controllers are now protected with continuous monitoring for at least 9 of the most common and damaging privilege escalation and lateral movement tactics including Kerberoasting and Golden Ticket attacks. The target has a 3-year strategy, uplift and staffing plan to reduce their tail risk in dollar terms by 90%, and manage cyber insurance premium costs. Working with our client, QOMPLX deployed a complete set of technology and integrated risk services to rapidly identify, quantify and reduce the target’s cyber risks. The delivered solution included: A 60-day drive-to-zero surge to contain and eliminate all critical-, high-and medium-rated external vulnerabilities A 6-month strategic security transformation program to build risk focused models, map to maturity frameworks, develop NIST-aligned risk programs, and heighten cyber team capacity and expertise Ongoing instrumentation and monitoring of critical control infrastructure, to harden Active Directory—the target of choice in all recent major cyber breaches An economic model quantifying reductions in tail value at risk (TVAR, cyber insurance premiums, and retained (uninsured residual) cyber risks. Included a 5-year ROI analysis, and insurance coverage optimization 60 |
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Unified, Futureproof, Resilient & Powerful Data Scientists, Actuaries, and Security Teams should not waste time on plumbing Key Capabilities Purpose-built, Scalable, Cost-effective, Complementar y, and Flexible ✔Streaming analytics for real-time alerting with windowed rules ✔One dataset stored across the right mix of graph, time-series, wide column, and relational databases for scale and performance ✔Pre-integrated data fabric for ease of orchestration, transformation, and utilization of disparate data sources ✔Scratchpads and ad hoc analytics for exploratory data analysis and hunting ✔Flink and Spark jobs for large scale computation - covering both stream and batch ✔Modeling and tools for Monte Carlo simulations and scenario analyses ✔Domain Experts to “Make It All Happen” 61 |
Exhibit 99.3
Tailwind Acquisition Corp. and QOMPLX, Inc.
Conference Call
March 2, 2021
Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
C O R P O R A T E P A R T I C I P A N T S
John Ferrari, Chief Financial Officer and Chief Administration Officer
Philip Krim, Chairman of Tailwind Acquisition Corporation
Jason Crabtree, Chief Executive Officer and Founder
P R E S E N T A T I O N
John Ferrari
Today is a landmark day for QOMPLX, as we announce our business combination with Tailwind Acquisition Corporation. Joining me on today’s conference call are Philip Krim, Chairman of Tailwind Acquisition Corporation, and Jason Crabtree, Co-Founder and CEO of QOMPLX. I am John Ferrari, the Chief Financial Officer of QOMPLX.
Before we begin, it is important to remind those listening that today’s call may include forward-looking statements, including, but not limited to, QOMPLX and Tailwind Acquisition Corporation’s expectations or predictions on financial and business performance and conditions, as well as the combined company’s strategy, future operations, estimated financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of Management.
These forward-looking statements are based on Management’s current expectations and assumptions about future events and are based on currently available information as of today, March 2, 2021, as to the outcome and timing of future events, but are subject to numerous risks and uncertainties, and they are not guarantees of future performance.
I encourage you to read the press release issued today and Tailwind Acquisition Corporation’s filings with the SEC, including the registration statement that will be filed in connection with the business combination, for a discussion of the risks that can affect the business combination, QOMPLX’ business, and the business of the combined company after completion of the proposed business combination.
QOMPLX and Tailwind Acquisition Corporation are under no obligation, and expressly disclaim any obligation, to update, alter, or otherwise revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Today’s call also contains references to certain financial measures that are not calculated in accordance with U.S. GAAP. More information on the definition and calculation of these measures can be found in the investor presentation relating to the business combination available on Tailwind’s website.
Now, I would like to introduce Philip Krim, Chairman of Tailwind Acquisition Corporation.
Philip Krim
Thank you, John, and welcome, everyone.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
We are very pleased to announce our planned business combination with QOMPLX. When we formed Tailwind Acquisition Corp in 2020, we had a clear focus, to partner with a founder led company that is pursuing a large addressable market through technology. We have found exactly that in QOMPLX. QOMPLX is a cloud-native leader in risk analytics that helps organizations quantify, model and predict risk in challenging cybersecurity and insurance domains. As far as I know QOMPLX is the first cyber security and risk analytics company to announce a public merger with a SPAC.
Our team has known Jason Crabtree, the Founder of QOMPLX for over five years. We were blown away by Jason when we met him, he had a strong clarity of vision for what he wanted to build, and it has been exciting to watch him execute on that vision and build a world class organization that is QOMPLX today. We are excited that they chose to partner with us in order to help realize and accelerate the Company’s long-term vision and we are looking forward to supporting the QOMPLX team in the future.
Now, I am very pleased to introduce Jason Crabtree, QOMPLX’s Co-Founder and CEO to discuss the business in more detail.
Jason Crabtree
Thanks, Philip, and thanks to you and the Tailwind Team for taking the time to really get to know QOMPLX and our customers and our Mission. We are incredibly excited to take this next step in the evolution of our business by combining with Tailwind Acquisition Corporation. I’m very excited to now to spend some time walking through the broader QOMPLX story and how we’re ultimately positioning the business for growth and to better support our clients.
Turning to Page 6.
QOMPLX is tremendously focused on building a category-defining cloud for risk. We focused on risk because the QOMPLX platform is really designed to help people focus their attention on what matters. I think a lot of organizations are finding out that when data gets very cheap, attention gets very expensive. Risk is one of the most important ways for people to focus on how to leverage the data that they’re generating, accessing, ingesting, not just for business purposes but to also consider the consequences of holding on that data and how it impacts their business going forward.
Turning to Page 7, QOMPLX is really focused on being the leader in cloud-native risk analytics and what we mean by that is rapidly ingesting transforming and contextualizing large and disparate data sources. Why that’s so important is that organizations have so much information, they have so much capability, but they actually don’t have all their data sources talking about the same thing. In cyber security, in finance, in insurance, different vendors all use different data models, different definitions of terms. They’re not maps to this universal singular ontology, and we are really good at helping organizations collect, ingest, transport, move and transform this information so that you can actually use it together as a concerted whole, that it’s rationalized. That’s particularly important in the highly specific domain risk areas like cyber security, like insurance. We’re doing it for some of the world’s largest. We’re doing a lot of it in memory with a much more streaming oriented architecture and much more of a cloud native approach to how we’re actually building this technology. We think that matters for our ability to scale.
Turning to Page 8, QOMPLX is really positioned at the nexus, the most important trends in technology. Our ability to provide this Rosetta Stone-like translation capability for these disparate groups in the enterprise is really foundational to our success with clients and to how we’re expanding our role. Our ability to leverage and connect the fact that the data people, the ops people, the finance people and the risk people typically do not have the same data set to operate off. Go into a large bank and look at the data sources and the raw source data that is used across first, second and third line. The reality is that these organizations benefit tremendously from having a single source of ground truth, but that’s not happening today and it requires more of this unified infrastructure approach.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
Turning to Page 9, I think QOMPLX is really important to understand from our history. My background, I went to West Point and had an opportunity to compete for some graduate school scholarships and was fortunate enough to win a Rhodes Scholarship. I met my co-founder there, Andrew Sellars, because he had gone to the Air Force Academy and Air Force Academy valedictorian and also ended up winning a graduate scholarship, won a Truman Scholarship and then went to Iraq. Then he and I overlapped at Oxford while he was getting his doctorate in computer science and I was there in grad school as well working on really advanced multidisciplinary optimization and, really, being a lazy engineer, frankly; trying to actually run lots and lots and lots of scenarios to figure out which one was going to give me the best outcome and doing that in a way that I could go to the pub or go do something more fun.
Andrew, his background was sort of the opposite of my world, which is all that really well structured. His world was all about this morass of the Internet, this just tremendously unstructured messy world that was out there. What we realized was that his world about order from disorder and my world about leveraging order to go do these really interesting scenarios and try and maximize positive outcomes was really, really positive if you put them together.
In Andrew’s doctoral thesis supervised by this guy named Georg Gottlob. Georg was, I think, one of the biggest names in data science and computer science in Europe at the time and Andrew’s work won Best Paper at a Very Large Databases, a tremendously important academic conference, but it was really about how do you do this stuff at scale? How can you leverage the fact that people are never going to clean up all their information? They’re never going to label it appropriately. That has tremendous implications for places like risk and risk management.
We ended up going back. I went to Afghanistan, served in the Infantry and then got moved to Cyber Command. I had an opportunity to work for the commanding general of Army Cyber Command and my experience there was sort of focused on some of the operational support use cases, some of the advanced R&D use cases, some of the opportunities to collaborate with Wall Street, and what we found was that every body was suffering from the same problem. In risk, you can’t be limited to your own experience, you can’t just do machine learning or deep learning; these are all retrospective modeling. You have to actually do simulations of things you haven’t experienced and you hope to never experience.
Andrew was doing a bunch of cheap architecture work for the Air Force at that time. He was working on these massive active directory collapsed programs, really understanding identity. He was working on how do you build the foundational backbone for the Department of Defense, the IT networks that were there? We realized there were two really fundamental problems and they were related problems. The first problem in cyber security and sort of digital risk management, thinking about operational risk and technology risk, was that identity and active directory and authentication were fundamentally not secure. It’s really important to understand that since everything depends on authentication, that’s a really dangerous statement. No one was monitoring to look at whether or not people could forge these kind of authentications, tokens or tickets. Nobody was looking at that stuff. These were links to some of the most devasting breaches and we’ve been watching this unfold, right? This is a part of the Office of Personnel Management 2014. It was a part of Maersk, FedEx, Travelex, NASDAQ. Active Directory is fundamental to the keys to the kingdom in these enterprises and you have to make sure that it’s there. Just like SAML is fundamental to the cloud and most of the SAML providers trust Active Directory, so you have to manage and monitor that route of trust.
This is the big first use case we had for the platform, where we said ‘Hey, we’re going to take this real-time streaming capability that we’ve been developing, we’re going to take some of the time series and graph analytics capabilities that we’ve been working on and we’re going to apply it to solving this really, really important problem.’. We left the service to go out and actually do that and build this business.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
The second problem that we’d experienced when we were in government and related, again, to a lot of the commercial and public sector organizations that were struggling with this was back to that risk, that data fusion problem. How do you take all this disparate data from all the different sources of information that you have, not just Active Directory, but other log sources, endpoint sources, things like Windows metlocks (phon), APM data. Can you pull that information in, not just for the cloud or on-premise but across this hybrid cloud environment and pull in all this telematics information to inform what you’re doing, to help you have this better living, breathing view of risk in your enterprise? We said yes, that has to be a part of the future. We have to be able to look at outside in and inside out in these enterprises.
But, that wasn’t enough. QOMPLX had this belief that we needed to really look at insurance and risk finance. So we needed to that because, precisely because, this data about all these things and how they’re interacting over time was so tremendously important to thinking about how you can make security make better economic sense. How do you enable people to get better risk transfer? How do you enable them to get a better insurance policy with better wordings, with better coverage? We said cyber security and insurance are both going through this almost co-mingled transformation where the enterprise needs off and it needs, what we call critical controls infrastructure and it needs the data fusion capacity, and the insurance industry is waking up to the fact that telematics is foundational to its future across so many aspects of property and cas space.
We took the same Lego kit, we reassembled it, we built a new experience and we started to to build underwriting and insurance telematics and risk modeling and tools that were specific to insurance needs in the P&C world. Now we’ve started to work to expand that further into risk data fusion and now expanding it even further into much more of an open platform as we continue to add more integrations into third party services, more support for onboarding other kinds of data sets and open data sets and dark data sets.
Our ability to keep growing this platform is really fundamentally around the fact that this is a universally accessible infrastructure that provides the ability to handle and move information from site to the cloud and from lots of different locations in the cloud into a unified environment, and to then track the data supply chain associated with that over time so that you know where is the is the providence of the information I’m using for this and you’re also able to run simulations and do different types of analysis to make better decisions. It’s fundamental to what we believe in and I think it’s an exciting part of the company.
Turning to Page 10, the cloud-native risk platform is really about this mix of leveraging risk discovery mitigation, continuous updates and risk economics so that actual financial impact is a good proxy for helping make better decisions by pulling data in from the actual databases, hosted and third party, enterprise applications, third party APIs, APM and log data, the digital exhaust to the enterprise, all this IoT information as well as some of that unstructured web data that was so core to Andrew’s doctoral work. Because we have that ingestion and orchestration layer, because we have integrated storage or we can access third party storage medium, because we also do simulation modeling and we can orchestrate some of the analytic work flows, we’re able to plug in and out the modern enterprise we believe in a way that really helps drive efficacy of analytics programs and I think this is core to any organization’s digital transformation, tracking the ingredient list and how these things relate for data and model lineage, using that to power ultimately some of these financial and research decisions. So important for people to focus their attention on what is going to drive their results.
QOMPLX decided to take that core technology platform—and we’ll talk about this more—but we decided that we needed to further our capability set so we bought a company called Hyperion Gray that added some really exciting breach data, dark web scraping, different types of web sensors to enhance some of the open data sets that we had in cyber security and risk. Tremendous experience doing exciting projects for DARPA and other kinds of organizations.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
We then said that was going to help us build sort of the quality of some of the threat intelligence in the data that was available to QOMPLX for its security clients because cyber security is so foundational to the developing world of risk and operational risk in particular.
The next part of it was to talk about Tyche. We had aspirations of continuing to develop our work in the insurance data factory of the future and we think the insurance data factory of the future is strongly related to your ability to link underwriting, risk selection, risk decision making, along with capital modeling and reserving and pricing. Tyche is a leader in insurance underwriting and pricing and capital modeling and reserving technology. And because of their tremendous role and relationship with an exceptional group of clients across both property and casualty and life insurers and brokers, Tyche was a really natural fit for us to help us further our own capabilities, not just because of the tremendous technology, though that’s an exciting part of the business, but also because of the tremendous people that are there.
Finally, Sentar. Sentar for us was an important part of QOMPLX understanding how to bring its technology into the government space. The government is not prepared to just buy technology; it needs to buy solutions in many cases, and Sentar with a tremendous history of awesome work in servicing some of the great institutions in healthcare and intelligence and defense and other federal civilian roles was a perfect partner for us from a go-to-market perspective to drive our solutions into the federal government and to attack some of those specific issues and deficiencies in the current capabilities available, specifically Active Directory and identity and data fusion, the kinds of things that were linked to why no one has been detecting some of the lateral movement and privilege escalation capabilities in some of the recent breaches like SolarWinds. It had a huge Active Directory and identity component with SAML forgeries, which, by the way, is the same thing again that you saw in OPM in 2014 where attacks against Active Directory featured very prominently in major intelligence breaches in the government. These become really foundational part of how QOMPLX furthers its distribution and its scale to operate and is responsive to its customers needs to have these more integrated solutions that provide the ability to strengthen our own distribution of our core technology.
Turning to Page 12, I think it’s easy for us to see why the significant scale and the still aggressive growth that we’re able to deliver on a pro forma basis for these numbers with this tremendous customer base –98 customers, tremendous revenue visibility, massive TAM, a really exciting net revenue retention rate, $141 million pro forma forecast revenue for this calendar year. This is a business that can scale and operate the way that it needs to for its clients.
Turning to Slide 13, I think QOMPLX’s approach to this is that organizations have this tremendous need to deal with the face that they have an onslaught of data in a way that they haven’t had to deal with before. It’s too big, it’s too fast. It requires time series data, graph data. It requires a lot of string processing. It requires an architecture that’s more flexible because the bigger (inaudible) gets, the more specialized you have to be about how you handle it. Organizations want to use it but they also have to understand that there are consequences for holding onto this virtual treasure trove.
Moving to Slide 14, I think this is where you start to see why this focus on risk really delivers results. The first piece is that there is this tremendous obligation, this tremendous responsibility and tremendous liability with data. This is the cost of data breaches. It’s not just data breaches. It’s confidentiality. It’s integrity. It’s availability. It’s the privacy implications around the trust of customers. You have to have a plan to use the stuff and manage it because it’s too important.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
Also, when you think about the tremendous need to integrate all these different vendors, especially for global enterprises, where you have different cyber security vendors, you have multiple endpoint companies in many cases, you have multiple firewalls, you may buy a company that has a different kind of infrastructure than you. You’ve got to integrate that together. You’ve got to find visibility. Too many vendors, too many solutions, not enough integration, not enough of ability to integrate that into a unified view of what’s happening, those are the seams that adversaries attack. Those are directly linked to the breaches. And they also slow down innovation. How much time spent on the plumbing, on the pipes, as opposed to actually dealing with the business cases that people want to focus their energy on?
I think this third piece around the model and data explosion of variety, the volume veracity of data, just the tremendous variety of this information just drowns people. When we start to look at why QOMPLX helps folks navigate that, it’s because we’re able to help them ingest and integrate these things and then track those models and track those data sets and do ad hoc work as well as build these production data pipelines. That starts to drive an ability to really help people make better decisions with a more holistic view of the enterprise data sets that they have at their disposal and to do it at scale with more focus on what’s unique for them, what’s differentiating? Not just plumbing.
Moving to Slide 15, we really define our total addressable market as a result of our tremendous focus and our wedge use cases in the enterprise around cyber security, and I think it’s important to note that we have a couple of key categories that we talk about here.
We are not an endpoint company. We are not a perimeter security company. We don’t build firewalls. We are not a SIM provider. We think there are a lot of solutions in all those spaces. But what we are and what we’re very good at with our customers is we’re able to provide them with insight into this critical control infrastructure, this Active Directory and authentication layer. That capability set is so foundational for us. It’s so foundational to making sure that you don’t have these big silent failure breaches or mass ransomware events that people have been experiencing. Our ability to do that is what gets us in the door with clients and it allows us to win some of the world’s best accounts. It also means that we fit alongside the existing vendor pool and we have tremendous ability to go into accounts that already have a lot of the big name brands and still add value and gain trust and then become a strategic partner over time.
As clients start to send us more data, Windows (inaudible) data, other data from other security tools, we start becoming more of a fusion provider that sits on top of all four of those prior quadrants, and that allows us to start to generate much more of a strategic holistic view of that risk, and the reason that we win both the identity use cases which are very data-intensive string processing around real-time validation of things like (inaudible) brush protocol and authentication is because of the big data infrastructure that we have and because we have this cloud-native architecture for flexible streaming, ingest, analysis, transformation, contextualization data, that’s why we’re winning and that’s why we talk about that platform, that ability to instantiate these declarative distributed systems and flows as being fundamental to our growth.
We believe that cyber security is going to drive and further the already building momentum for insurance telematics and analytics and risk selection. We think that organizations are not just going to talk to you at time of underwriting and at time of claim. We think that there’s going to be much more of an ongoing relationship that’s actually beneficial to insureds and to insurers and to the other people in the risk management domain.
In cyber security, it’s so important but it’s important in other kinds of property and casualty insurance and we’re excited that this technology platform is well positioned for that fast growing part of the market and we think that’s going to be something that sees substantial opportunity for us.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
Finally, IT operations management, some of the other log and APM data, that digital exhaust, if we’re providing a lot of the other data fusion use cases and we’re starting to handle more of that, we see clients with a lot of interest in handling those kinds of workflow styles and we think that’s going to continue to help us build and grow our business.
Moving to Slide 16, I think it’s fundamental to understand that QOMPLX is really built as a actual cloud-native architecture. We’re not in the cloud, we were designed from the cloud. We were fortunate that our business started just late enough that the kind of design patterns that are available today were beginning to come into fruition and we’ve been a very, very early adopter in how we built this technology platform. That’s part of why we’re able to deal with this tremendous velocity and volume of data, but it’s also part of why we can perform really economically, not just in terms of our actual performance in terms of things like timeliness or latency in some of these very latency-sensitive workloads that we have, but that we can do it in a way that’s efficient from a financial perspective. We use a blended SaaS utility model. We have use cases that are extraordinarily specific and that allows us to be very precise for our customers. They have great expectation management around what their costs are going to be and visibility into that on a go-forward basis, especially for things like our identity use cases and privileged analytics and insurance, those things really help us. But we also can support custom data analytic workflows, custom analytics, those kinds of things are more towards a utility model.
Our ability to scale that and to do it on top of a secure platform is fundamental to our success and to why clients benefit from having this unified infrastructure provided to them as a control plane for their data and data supply chain.
Moving to Slide 17, I think this is where we start to talk a little bit more about how that core technology platform that’s driving the value in our cyber security products also links to things like what we’re doing in cyber insurance or what we’re doing in insurance telematics or what we’re doing in analytics more broadly. Some to the unique things that we’ve developed for our cyber security applications like our time series and graph databases, some of the really unique breach data stores and security telemetry that we host in wide column, some of the intensive batch processing work that we do that leverages things like Spark, or the stream processing work that we do that’s very oriented around true streaming like Flink, scalable message, things like Kafka, really unique data orchestration for declarative formalisms, so we use some capabilities like the distributed computational graph that we’ve invented. These things provide a mechanism for instantiating and creating and managing these data flows much faster, cheaper, much more predictably and with this auditability, this metadata that matters.
When you move to Slide 18, we really start to talk about the fact that if you’re on the QOMPLX platform and you register an algorithm, you register a data set, you can then track its lineage over time. You can track and try and deal with how do you deal with enrichment. We’ve got integrated notebooks that we call scratchpads for looking at ad hoc data science. We’ve got ingest and workflow capabilities that help us onboard data sets, and we’re working all the time to make this increasingly self-service and consumerized, and for cyber security and some of our turnkey applications we’re already there.
We’ve got some really innovative technology we’ve developed around our time-series and graph data stores, and some of the other capabilities that we have. We really encourage our clients to try and use the right tool for the right job. We don’t force you into a monolithic architecture. We don’t think that’s what the future is. The bigger your data, the more specialized you have to be. You have to have the right toolkit for the job.
Then, Tyche, again provides a really nice way of linking in this high-speed actuarial data science compute tool, which is sort of like a Spark for actuaries in some ways, alongside our Flink and our Spark capabilities. This provides an opportunity for us to do that and we have some really neat interbase (phon) modeling and simulation and some other tools that we’ve built for actually helping deal with risk modeling and analysis that you can really use to reduce the amount of time again spent on building infrastructure and plumbing, and more time on actual workflows and use cases.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
Moving to Slide 19, I think we have this mantra here which is security is a subset of reliability. People want to know that their data is being taken care of and that they can count on you. I think our customers count on us because we help them restore trust in their critical services and we help them restore trust in how authentication of these critical things work in their network, and we handle mission-critical workloads.
When you look at things like OPM where at the center of that debacle was Active Directory and lateral movement privilege escalation, and you look at things like SolarWinds where at the center of that debacle was Active Directory and privilege escalation including things like attacks on Kerberos and including things like attacks on cloud-based identity providers through SAML, that was going from on-premise to the cloud. That’s because cloud identity providers largely get peered and trust on--premise identity and on-premise identity is Active Directory. That’s how most organizations implement SAML.
As a result of that, we think it’s fundamentally irresponsible for organizations to not have tremendous visibility over authentication. Every other part of your security and IT enterprise depends on authentication; you have to watch the watchers. You have to check that authentication events aren’t being forged, that they are valid.
That use case, as you move to Slide 20, is what drives our Privilege Assurance and our Identity Assurance onboarding for clients. Privilege assurance is about building this big security graph. It allows us to look at that. We sit alongside some of the privileged access management providers that provide the workflow; we don’t do that. What we do is we provide this tremendously focused attacker-focused view of the network. How do the privileges and the relationships between the things in the network actually link together? How would you move from one point to another?
Credentials and privileges have always been much more important than malware. You’ll always log in as opposed to use malware if you have the capacity to do so. This is how you establish persistence. Identity assurance complements Privilege Assurance by saying, ‘Hey, now that you have the roadmap, you have the treasure map in some ways.’ How do we take a look at all the authentication transactions? How do we catch you when you want to move from where you’ve started? Whether you’ve phished somebody in the Finance department or HR whose job it is to open up resumes all day long and they might download some malicious software, whether it’s something like SolarWinds where there was a trusted piece of software that was installed by the IT teams on the network and an adversary used that as the entry point. Does it really matter? Lateral movement in privilege escalation is fundamental; it’s not being caught by existing solutions and we have tremendous capacity and demonstrated capacity to go out and detect some really damaging attacks, and think that the way that we do that is really well suited for our needs.
Then we expand with data fusion analytics and we’ve got some exciting new things coming that we’ve recently added around our external security scanning and scoring and posturing, and then our ability to bring all of that together with additional data models and connectors with prebuilt integrations in things like Splunk or ServiceNow, Atlassian, so that we can actually fit inside other types of organizations’ existing workflows.
This kind of risk focused approach is making sure that you cover the seat belts and the air bags. That’s what monitoring identity is. There’s folks that want to talk all day about preventing car door dents, but the severe events are the ones that hurt companies, they’re the ones that hurt people, and they’re the ones that are currently hurting the United States and we want to make sure that those events are getting their due because those ones are the ones that drive losses.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
As we move into Slide 21, I think it’s really important to understand that QOMPLX’s infrastructure is what defines its performance, even in cyber security. This Lego kit we have built, this platform which we get tremendous reuse of core components out of for cyber security or insurance or economic applications is fundamentally about how do we use declarative frameworks to try and specify more about what to do, not necessarily how to do it. What do you want to accomplish, right? How do you link together data queries and transformations, processing stages, and then send it to the right location? That’s what we use under the hood to ultimately do things like our Kerberos validations that we use in our Identity Assurance product, these really high volume difficult data problems.
Because we build turnkey applications on top of that common Lego set, we get a lot of synergy out of our work and it actually really helps us drive the performance of the company, and I think this is core to our long-term success.
Our cyber security applications are designed to be turnkey software as a service applications that allow us to go in quickly with a client, establish value and then add additional data sets and workflows over time.
When we start to look at cyber insurance, part of the reason we believe in that telematics story is that we know that there is tremendous losses and adverse development going on in the insurance industry because they’re losing a lot of money over the fact that they’ve not been able to look outside in and inside out at the same time. QOMPLX provides that unique view and we think that we have a much better way of measuring real risk and not depending on really poor proxies, which is what is driving some of the poor development.
And finally, because we have this really deep view of risk and risk finance, we think that this probabilistic lens on how to look at your data—both the opportunities and the consequences of it—are really, really fundamental to the value proposition in the market.
When you move to Slide 22, QOMPLX has been focused on establishing lighthouse accounts across industries, and what we mean is we focused on the kinds of customers that we thought could help us refine and demonstrate the value and the expansion opportunities of our core technology platforms and the companies we’re buying largely did the same.
Our ability on a pro forma basis to show this capability of this core technology platform and tremendously talented staff to deliver technology solutions for these difficult problems in cyber security and a broader set of risks is fundamental to our growth.
Moving to Slide 23, we organize our go-to-market around categories, around the industry verticals that we service, because that’s how our customers organize and think about their use cases and it’s how they network and build relationships and trust. And so, we organize our sales force that way, and then, we work geographic separate from that.
We’ve started to develop a rich set of go-to-market partnerships and we’re continuing to develop a whole range of technology marketplace integrations so that we can send data in and out of other people’s solutions and services and streamline our ability to fit inside any organization’s workflow as we start to add value and earn the right and earn the trust to add more data sets and more solutions for responsibility over time.
When you look at Slide 24, this really talks about how we expand our customers. We grow our logos and we expand within our existing customers because they can continue to send us different types of data sets and our flexible infrastructure allows us to continue to integrate and expand those, and so you can contextualize them. Because we also have this rich marketplace which is really a registry that allows us to register different data sets and models and track them, we think that’s also fundamental to helping with this data supply chain.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
As you move to Slide 25, thinking about how we initially landed the client, we believe that these wedge cases that have specific users, specific outcomes are really fundamental. We have self-guided trials, so we’re able to do things like have an actual basically test range up where it’s instrumented with our software for detecting things like Active Directory attacks, and we’re able to actually give our customers the ability to put their offensive security team right inside that real range. They’re able to run real attacks on real networks, things that weren’t able to detect with their endpoint solutions provider, with their existing SAML or firewalls, things like those Active Directory lateral movement attacks, (inaudible) phishing, DCShadow, Golden Tickets, Silver Ticket, some really hard stuff, and they’re able to validate that we do what we say on the TAN (phon) or able to talk to them about what it is and they’re able to see that for themselves. That helps us shorten the sales cycle time as we deploy on their own network because they’re able to validate those fundamental pieces early on, and we’re continuing to invest in this. We’re enabling more expansion and more self-service options in the platform all the time and it’s a significant area of investment for us.
When you start to look at some of the new products that we’re offering and blending in, we’re moving from those core cyber security opportunities use cases and expanding access to some of the core platforms and building blocks to the platform to allow our customers to grow their footprint and to use us to take on additional workloads so they can continue to benefit from this unified platform as they do so.
If you move to Slide 26 and 27, I think it’s exciting for us to see that clients who start with us in these Active Directory and identity-centric use cases, typically expand with us to do additional external security posture monitoring, to do additional M&A type of assessments, to help them think about how are their new acquisitions targets or prospects going to fit within their security program. Also to do things like help them design and develop risk programs that are quantitative enough, that help them map the scenarios that they’re concerned about—massive data breach, ransomware, etc.—to the actual risks and controls that they have.
When we move to Slide 28, I think one of the things that we’re really excited about at QOMPLX is the quality of the management team that we’ve assembled. When Andrew and I started the company, we really wanted to bring together really deep operational expertise, financial expertise, cyber security expertise, insurance expertise, government services expertise to actually have this in (inaudible) of our core, and with the acquisitions of Sentar and Tyche, we’re really able to do that and continue to bolster our team.
Our key Executive Management Team has worked in senior leadership roles in Finance and Risk across great organizations like JPMorgan, Goldman Sachs, Validus Group, AON, Jacobs. John Ferrari, our CFO, was a senior leader in the Army with Operations, Research and Finance background. We’re really proud of the people that we’re bringing together and we’re proud of the fact that we have a deep belief that this is a management team that wants to provide this tremendously important co-pilot for risk capability with the technology and the expertise to help clients make great judgment calls.
With that, on Slide 30, I want to turn it over to John Ferrari, our CFO and CAO, who is going to walk through a few of the financial highlights about the company.
John Ferrari
Thank you, Jason. Today I’ll discuss with you our financial metrics, metrics that are driven by our platform and our customer.
ViaVid has made considerable efforts to provide an accurate transcription. There may be material errors, omissions, or inaccuracies in the reporting of the substance of the conference call. This transcript is being made available for information purposes only.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
Moving to Slide 31, first I want to discuss the platform. These are the key metrics demonstrating the success for our platform and providing the path for high margins and growth.
First, on margins, our risk cloud platform is gross margins of 78%, even at this early stage when we haven’t achieved the full effect of scale. This is the machine that will drive our profitability going forward. QOMPLX’s customers also love the platform. We have 0% churn and 139% net retention revenue.
Not shown here is Tyche. Tyche Solutions also have high margins—greater than 65%—and a high retention rate of also net revenue retention of 136%. Taken together, the solutions of Tyche and the platform of QOMPLX provide the margins and customer retention that will drive future growth.
Slide 32 is the pro forma customers of the organization. This slide shows you the key metrics for the entire customer base. We have almost 100 customers. With a growth retention rate of 93% and a net revenue retention greater than 114%, this is our opportunity to cross-sell, upsell and expand across Tyche, Sentar and QOMPLX.
The average revenue for the Top 20 customers is over $4 million and when you look at beyond the near years and take the total addressable market into consideration, this is a powerful and market-leading growth opportunity.
Slide 33 shows the pro forma revenue, margins and profit going forward of the combined entity. With revenue growth of 40%, and more importantly, as Jason has said, 77% of that revenue is recurring, this is our springboard to growth. We plan to build on the high margins of QOMPLX and Tyche, which together are well over 70%.
The opportunity is with Sentar. Sentar’s business model to date has been that of providing cyber security through labor to the U.S. Government. When we bring our platform in, that’s when we’ll be able to transform their business, expand their ability to win new contracts and further improve our scale. It’s that combination of expanding our business commercially and then changing the revenue mix of contracts within Sentar that drive the margin growth over time.
Again, this is a summary of our revenue growth, our margins and our EBITDA. This slide compares our key metrics with other established companies. Taking into account that we’re a younger but cloud-native, high growth company, you can see that we have the same number of customers as C3 and our average revenue per customer is right up there with other market leaders.
Jason, back to you.
Jason Crabtree
Thanks, John. I think the reality for us when we just look at how we solve problems for clients is that the QOMPLX Management Team and the entire QOMPLX organization, including the acquisitions that we’re incorporating into our business, are really focused on the success of their customers and their customers’ customers and the mission that they support.
I think for us, as we looked at how to scale our business in the most cost-effective way to access the government markets so we could sell through the formidable suite of cyber security analytics solutions that we have, including to the classified environments, we felt like our ability to do so, leveraging the tremendous core technology assets that were here was really heightened by the business case for this combined entity.
ViaVid has made considerable efforts to provide an accurate transcription. There may be material errors, omissions, or inaccuracies in the reporting of the substance of the conference call. This transcript is being made available for information purposes only.
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Tailwind Acquisition Corp. and QOMPLX, Inc. Conference Call, March 2, 2021
The fact the QOMPLX itself was running at 138% NRR, the fact that we were able to put up over 70% margins in our organic business, even though the Government Services addition of Sentar pulls that down on an aggregate basis, we’re going to be seeing our commercial business accelerate the overall formation of our revenue and profitability, and we’re going to use that to help drive that expansion, as John noted. But we’re also accessing such a tremendously important government market and I think that’s also core to just some of the communities that we were a part of prior to starting our business, that we want to continue to support. We think there’s a tremendous commercial opportunity in supporting the mix of public and private sector clients, and we think that we have a tremendous platform on which to provide and distribute this technology, and there are tremendous advantages in us running the business at this scale.
Our ability to produce $141 million of pro forma estimated revenue for this calendar and $210 million next year is really exciting to us, and I think the tremendous transaction for us with Tailwind puts us in a position where we have the balance sheet strength to be responsive to the opportunities that have kind of come our way in the market to where we can be well capitalized for our existing clients and partners, and to where we can continue to attract and retain the tremendous talent that are making QOMPLX and the acquisition entities actually capable of delivering on the tremendous growth capabilities that are here. That’s what we’re focused on, and our focus on driving that for our customers is why we’re excited about the business, and frankly, excited to share about it with all of you.
Philip Krim
Thank you, Jason. The pro forma enterprise value of the transaction is estimated to be $1.2 billion at closing. The pro forma equity value is estimated to be $1.4 billion based on the $10 per share of Tailwind Acquisition Corp. Approximately $200 million of the cash proceeds from the PIPE financing and Tailwind trust account will be used to fund the Sentar and Tyche acquisitions. This transaction positions QOMPLX with a strong balance sheet and approximately $280 million for continued growth capital, assuming minimal redemptions.
The Board of Directors of both Tailwind Acquisition Corp. and QOMPLX unanimously approved the transaction. Existing QOMPLX equity holders will roll 100% of their equity and will own approximately 59% of the pro forma company.
In addition, Cannae, an existing QOMPLX shareholder led by Bill Foley, has committed to an anchor investment of $50 million of the $180m PIPE financing, with additional investor support from Fidelity, Hedosophia, Renaissance RE and other leading institutional investors.
Our transaction’s pro forma enterprise value of $1.4 billion represents what we believe to be an attractive entry point relative to recently announced public SPAC transactions, as well as relative to the broader peer set in cyber security and data analytics platforms.
We believe QOMPLX is well positioned with a highly durable, recurring and predictable revenue model, multiple drivers of sustainable organic growth, a scalable cost structure with structural operating leverage, a visible path to near term profitability and a platform for M&A to drive scale and distribution advantages. Completion of the proposed transaction is subject to customary closing conditions and is expected to be completed in mid-2021.
ViaVid has made considerable efforts to provide an accurate transcription. There may be material errors, omissions, or inaccuracies in the reporting of the substance of the conference call. This transcript is being made available for information purposes only.
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Exhibit 99.4
Technology
Risk Analytics Firm Qomplx to Go Public Via Casper CEO SPAC
By Katie Roof
March 1, 2021, 5:31 PM EST
Updated on March 1, 2021, 6:16 PM EST
► | Qomplx deal is backed by serial SPAC dealmaker Bill Foley | |
► | Casper CEO Philip Krim raised $300 million last year for SPAC |
Philip Krim Photographer: Kimberly White/Getty Images
A blank-check company started by mattress company Casper Sleep Inc.’s Chief Executive Officer Philip Krim has found a target.
Q omplx Inc., a risk-analytics provider that helps companies protect against cyber-security threats, has agreed to go public through Krim’s special purpose acquisition company, Tailwind A cquisition Corp., according to Qomplx Chief Executive Officer Jason Crabtree.
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The equity value of the deal is $1.4 billion, he said in an interview. As part of the deal, Qomplx will buy two other private companies: risk analytics company Sentar and insurance modeling platform Tyche, Crabtree said.
Bill Foley, a serial SPAC dealmaker is involved in the deal through his publicly traded investment firm, Cannae Holdings Inc., which owns 20% of Qomplx.
“He felt like he could suffer less dilution yet buy these companies and put them all together,” Foley said in an interview, referring to Crabtree.
Foley, who owns the National Hockey League team the Vegas Golden Knights, is a previous investor in Qomplx and will be contributing to the additional capital the SPAC is raising to support the deal.
The deal includes a $180 million private investment in public equity from other investors including Fidelity Management and Research Co., RenaissanceRe Ventures Ltd. and Chamath Palihapitiya’s SPAC partner, Hedosophia.
Crabtree, Qomplx’s co-founder, has worked at the Department of Defense and was in the military before founding the startup in 2014, its website showed. He co-founded the Tysons, Virginia-based company with Chief Technology Officer Andrew Sellers, who also has a military background.
The pro forma company is expected to have $141 million in revenue in 2021, Crabtree said in an interview.
“Reaching public markets via our partnership with Tailwind expedites Qomplx’s ability to reach more customers globally,” Crabtree said.
Tailwind raised $300 million in an initial public offering in September. Its shares rose 3.6% to close at $10.89 in New York on Monday, giving the company a market value of about $455 million.
Jefferies Financial Group Inc. and Piper Sandler Cos. advised Tailwind. Barclays Plc, Mizuho Financial Group Inc. and William Blair & Co. advised Qomplx.
— With assistance by Crystal Tse
(Updates Tailwind shares in second to last paragraph. An earlier version of this report corrected the spelling of Qomplx in fourth paragraph)
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