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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):

November 7, 2021

 

DUDDELL STREET ACQUISITION CORP.

(Exact Name of Registrant as specified in its Charter)

 

Cayman Islands   001-39672   N/A

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

8/F Printing House, 6 Duddell Street

Hong Kong

  00000
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: + 852 3468 6200

 

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

Class A ordinary shares, par value $0.0001 per share   DSAC   Nasdaq Capital Market
Redeemable warrants, each whole warrant exercisable for one Class A ordinary share at an exercise price of $11.50   DSACW   Nasdaq Capital Market
Units, each consisting of one Class A ordinary share and one-half of one redeemable warrant   DSACU   Nasdaq Capital Market

 

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 November 7, 2021, Duddell Street Acquisition Corp., a Cayman Islands exempted company (“DSAC”), entered into an Agreement and Plan of Merger (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among DSAC, Grassroots Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and FiscalNote Holdings, Inc., a Delaware corporation (“FiscalNote”).

 

The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of each of DSAC, Merger Sub and FiscalNote.

 

The Business Combination

 

The Business Combination Agreement provides for, among other things, the following transactions on the closing date: (i) DSAC will domesticate as a Delaware corporation (“Newco”, such transaction, the “Domestication”) and, in connection with the Domestication, (A) each then issued and outstanding Class A ordinary share of DSAC will convert automatically into one share of Class A common stock of Newco (the “Newco Class A Common Stock”), (B) each then issued and outstanding Class B ordinary share of DSAC will convert automatically into one share of Newco Class A Common Stock, and (C) each then issued and outstanding common warrant of DSAC will convert automatically into one warrant to purchase one share of Newco Class A Common Stock; and (ii) at least one day after the Domestication, Merger Sub will merge with and into FiscalNote, with FiscalNote as the surviving company in the merger and, after giving effect to such merger, continuing as a wholly-owned subsidiary of Newco (the “Merger”).

 

The Domestication, the Merger and the other transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination.” The time at which the Merger becomes effective are hereinafter referred to as the “Effective Time.”

 

In connection with the Business Combination, Newco will adopt a dual class stock structure pursuant to which (i) all stockholders of Newco, other than the existing holders of FiscalNote Class B common stock, will hold shares of Newco Class A Common Stock, which will have one vote per share, and (ii) the existing holders of FiscalNote Class B common stock will hold shares of Class B common stock of Newco (the “Newco Class B Common Stock”), which will have 25 votes per share. The Newco Class B Common Stock will be subject to conversion to Newco Class A Common Stock upon any transfers of Newco Class B Common Stock (except for certain permitted transfers) and subject to certain other customary terms and conditions.

 

The Business Combination is expected to close in the first quarter of 2022, following the receipt of the required approval by DSAC’s and FiscalNote’s shareholders and the fulfillment of other customary closing conditions.

 

Merger Consideration

 

In accordance with the terms and subject to the conditions of the Business Combination Agreement (i) each share of FiscalNote Class A common stock (other than dissenting shares) will be canceled and converted into the right to receive the applicable portion of the merger consideration comprised of Newco Class A Common Stock, in an amount determined by dividing the quotient of (A) the sum of $1 billion plus the aggregate exercise price payable with respect to vested FiscalNote options and FiscalNote warrants, divided by (B) the total number of issued and outstanding FiscalNote shares, taking into account the total number of shares issued or issuable as a result of any exercise or conversion of all FiscalNote equity securities outstanding immediately prior to the Effective Time (whether issued prior to, at or after the Effective Time), by $10.00 (the “Exchange Ratio”) , in accordance with the Business Combination Agreement, (ii) each share of FiscalNote Class B common stock (other than dissenting shares) will be canceled and converted into the right to receive the applicable portion of the merger consideration comprised of Newco Class B Common Stock, as determined pursuant to the Exchange Ratio, (iii) all of the subordinated convertible promissory notes issued by FiscalNote that are outstanding and unconverted immediately prior to the Effective Time will be automatically assumed and converted into a convertible note issued by Newco with a right of conversion into shares of Newco Class A Common Stock, (iv) all of the warrants to purchase FiscalNote Class A common stock or FiscalNote preferred stock outstanding and unexercised or unconverted, as applicable, immediately prior to the Effective Time will be deemed automatically exercised or converted into the right to receive a number of shares of Newco Class A common stock determined in accordance with the Business Combination Agreement, (v) all options to purchase Class A common stock of FiscalNote, vested or unvested, will convert into stock options to purchase shares of Newco Class A Common Stock determined in accordance with the Exchange Ratio, (vi) vested restricted stock units to acquire shares of Class A common stock of FiscalNote will be automatically deemed settled and converted into the right to receive that number of shares of Newco Class A Common Stock determined in the Business Combination Agreement, and (vii) all of the unvested restricted stock units to acquire shares of Class A common stock of FiscalNote outstanding immediately prior to the Effective Time will be automatically assumed and converted into restricted stock units relating to shares of Newco Class A Common Stock, subject to substantially the same terms and conditions as were applicable immediately before the Effective Time.

 

 

 

 

In addition, the Business Combination Agreement contemplates that the holders of common stock, warrants, options and RSUs of FiscalNote outstanding immediately prior to the Effective Time will be entitled to receive earnout consideration in the form of shares of Newco Class A Common Stock and/or restricted stock units of Newco upon occurrence of certain triggering events after the Effective Time as determined in the Business Combination Agreement.

 

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. DSAC and FiscalNote have also agreed to take all necessary action such that, effective immediately after the closing of the Business Combination, the DSAC board of directors (the “Board”) shall consist of eleven directors, of whom one shall be the Chief Executive Officer of FiscalNote, two shall be designated by Duddell Street Holdings Limited (the “Sponsor”), subject to CFIUS approval, with the remaining eight individuals designated by FiscalNote. In addition, DSAC has agreed to adopt an incentive equity plan in an amount not to exceed 9% of DSAC’s equity interests on a fully-diluted basis with an annual evergreen provision in an amount not to exceed 3% on a fully-diluted basis and an employee stock purchase plan in an amount not to exceed 2% of DSAC’s equity interests on a fully-diluted basis with an annual evergreen provision in an amount not to exceed 1% on a fully-diluted basis.

 

Conditions to Each Party’s Obligations

 

The obligations of DSAC and FiscalNote to consummate the Business Combination are 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 approval of DSAC’s and FiscalNote’s shareholders, (iii) the approval for listing of Newco Class A Common Stock to be issued in connection with the Business Combination on The Nasdaq Stock Market, and (iv) DSAC 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) (the “Exchange Act”) remaining after the closing of the Business Combination.

 

In addition, the obligation of FiscalNote to consummate the Business Combination is subject to the fulfilment of other closing conditions, including, but not limited to, the aggregate cash proceeds from DSAC’s trust account (after deducting any amounts paid to DSAC shareholders that exercise their redemption rights in connection with the Business Combination), together with the proceeds from the PIPE Financing (as defined below) and the net amount of proceeds actually received by DSAC pursuant to the Backstop Agreement (as defined below), if any, minus the lesser of the transaction expenses incurred by FiscalNote and $5,000,000, minus the lesser of the transaction expenses incurred by DSAC and $30,000,000, as determined in the Business Combination Agreement, equaling no less than $190,000,000.

 

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 DSAC and FiscalNote, (ii) by either party if the consummation of the Business Combination is permanently enjoined, prohibited, deemed illegal or prevented by the terms of final, non-appealable Governmental Order (as defined in the Business Combination Agreement), (iii) by DSAC if there is any breach of any representation, warrant, covenant or agreement on the part of FiscalNote 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 covenant or agreement, as applicable, are not cured or cannot be cured within certain specified time periods, (iv) by FiscalNote if there is any breach of any representation, warrant, covenant or agreement on the part of DSAC or Merger Sub 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 covenant or agreement, as applicable, are not cured or cannot be cured within certain specified time periods, (v) subject to certain limited exceptions, by either DSAC or FiscalNote if the Business Combination is not consummated by the eight-month anniversary of the date of the Business Combination Agreement, and (vi) by either DSAC or FiscalNote if certain required approvals are not obtained by DSAC shareholders after the conclusion of a meeting of DSAC’s shareholders held for such purpose at which such shareholders voted on such approvals (subject to any permitted adjournment or postponement of such meeting).

 

 

 

 

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 other than customary confidentiality obligations, other than liability of any of the parties for (i) willful and material breach of the Business Combination Agreement or (ii) fraud.

 

The foregoing description of the Business Combination Agreement is subject to and qualified in its entirety by reference to the full text of the Business Combination Agreement, a copy of which is included as Exhibit 2.1 hereto, and the terms of which are incorporated by reference. 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. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Business Combination Agreement. The Business Combination Agreement will be filed to provide investors with information regarding its terms. It is not intended to provide any other factual information about the parties to the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors, security holders and reports and documents filed with the SEC. Investors and security holders are not third-party beneficiaries under Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business Combination Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in DSAC’s public disclosures.

 

Sponsor Agreement

 

Concurrently with the execution of the Business Combination Agreement, DSAC, the Sponsor, FiscalNote and certain other persons party thereto entered into a sponsor letter agreement (the “Sponsor Agreement”), pursuant to which the Sponsor has agreed to, among other things, (i) not to redeem any ordinary shares in DSAC owned by it in connection with the Business Combination, (ii) vote in favor of the Business Combination Agreement and the transactions contemplated thereby (including the Merger) and (ii) waive any adjustment to the conversion ratio set forth in DSAC’s amended and restated memorandum and articles of association with respect to the Class B ordinary shares of DSAC held by the Sponsor, in each case, on the terms and subject to the conditions set forth in the Sponsor Agreement.

 

In addition, the Sponsor has agreed that (i) all equity interests of Newco held by the Sponsor immediately after the Effective Time (the “Restricted Securities”) will be subject to a lockup of 180 days from the Effective Time and (ii) 50% of each type of the Restricted Securities held by the Sponsor will be subject to a lockup during the period from the date that is 180 days following after the Effective Time and ending on the first anniversary of the Effective Time, in each case, except to the Permitted Transferees as defined in the Sponsor Agreement.

 

 

 

 

The foregoing description of the Sponsor Agreement is subject to and qualified in its entirety by reference to the full text of the form of Sponsor Agreement, a copy of which is included as Exhibit 10.1 hereto, and the terms of which are incorporated by reference.

 

PIPE Financing (Private Placement)

 

In connection with the signing of the Business Combination Agreement, DSAC entered into subscription agreements (the “Subscription Agreements”) with certain investors, including affiliates of Sponsor (the “PIPE Investors”). Pursuant to the Subscription Agreements, the PIPE Investors agreed to subscribe for and purchase, and DSAC agreed to issue and sell to such investors, on the closing date of, and immediately prior to (but subject to), the Merger, an aggregate of 10,000,000 shares of Newco Class A Common Stock for a purchase price of $10.00 per share, for aggregate gross proceeds of $100,000,000 (the “PIPE Financing”).

 

The foregoing description of the Subscription Agreements is subject to and qualified in its entirety by reference to the full text of the form of Subscription Agreement, a copy of which is included as Exhibit 10.2 hereto, and the terms of which are incorporated by reference.

 

Voting and Support Agreements

 

Concurrently with the execution of the Business Combination Agreement, certain stockholders of FiscalNote (collectively, the “Voting Stockholders”) entered into a voting and support agreement (collectively, the “Support Agreements”) with DSAC and FiscalNote, pursuant to which each Voting Stockholder has agreed to, among other things, (i) vote in favor of the Business Combination Agreement and the transactions contemplated thereby, (ii) a lockup of all equity interests of Newco held by such Voting Stockholder immediately after the Effective Time for a period of 180 days from the Effective Time (or 12 months, in the case of the Company’s co-founders), and (iii) be bound by certain other covenants and agreements related to the Business Combination. The Voting Stockholders hold sufficient shares of FiscalNote to cause the approval of the Business Combination on behalf of FiscalNote.

 

The foregoing description of the Support Agreements is subject to and qualified in its entirety by reference to the full text of the forms of Support Agreement, copies of which is included as Exhibit 10.3 hereto, and the terms of which are incorporated by reference.

 

Registration Rights Agreement

 

At the closing of the Business Combination, Newco, the Sponsor, the Backstop Purchasers (as defined below) and certain other holders of Newco Class A Common Stock will enter into an amended and restated registration rights agreement (the “Amended and Restated Registration Rights Agreement”) pursuant to which, among other matters, certain stockholders of DSAC and FiscalNote will be granted certain customary demand and “piggy-back” registration rights with respect to their respective shares of Newco Class A Common Stock.

 

The foregoing description of the Amended and Restated Registration Rights Agreement is subject to and qualified in its entirety by reference to the full text of the form of Amended and Restated Registration Rights Agreement, a copy of which is included as Exhibit 10.4 hereto, and the terms of which are incorporated by reference.

 

Backstop Agreement

 

In connection with the signing of the Business Combination Agreement, DSAC and certain affiliates of the Sponsor (the “Backstop Purchasers”) entered into a backstop agreement (the “Backstop Agreement”) whereby the Backstop Purchasers have agreed, subject to the other terms and conditions included therein, at the BPS Closing (as defined in the Backstop Agreement), to subscribe for Newco Class A Common Stock in order to fund any redemptions by shareholders of DSAC in connection with the Business Combination, in an amount of up to $175,000,000 (the “Sponsor Backstop”).

 

The foregoing description of the Backstop Agreement is subject to and qualified in its entirety by reference to the full text of the form of Backstop Agreement, a copy of which is included as Exhibit 10.5 hereto, and the terms of which are incorporated by reference.

 

 

 

 

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 Newco Class A Common Stock to be offered and sold in connection with the PIPE Financing and the Sponsor Backstop have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon the exemption provided in Section 4(a)(2) thereof.

 

Item 7.01 Regulation FD Disclosure.

 

On November 8, 2021, DSAC and FiscalNote issued a joint press release announcing their entry into the Business Combination Agreement, the Subscription Agreement and the Backstop Agreement. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.

 

Furnished as Exhibit 99.2, and incorporated into this Item 7.01 by reference is the investor presentation that DSAC and FiscalNote have prepared for use in connection with the PIPE Financing and the announcement of the Business Combination.

 

The foregoing (including Exhibits 99.1 and 99.2) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.

 

Additional Information and Where to Find It

 

For additional information on the proposed Business Combination, see DSAC’s Current Report on Form 8-K, which will be filed concurrently with this press release. In connection with the proposed Business Combination, DSAC intends to file relevant materials with the Securities and Exchange Commission (“SEC”), including a registration statement on Form S-4 with the SEC, which will include a proxy statement/prospectus of DSAC, and will file other documents regarding the proposed Business Combination with the SEC. DSAC’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 and documents incorporated by reference therein filed in connection with the proposed Business Combination, as these materials will contain important information about FiscalNote, DSAC and the proposed Business Combination. Promptly after the Form S-4 is declared effective by the SEC, DSAC will mail the definitive proxy statement/prospectus and a proxy card to each shareholder entitled to vote at the meeting relating to the approval of the Business Combination and other proposals set forth in the proxy statement/prospectus. Before making any voting or investment decision, investors and shareholders of DSAC are urged to carefully read the entire registration statement and proxy statement/prospectus, when they become available, and any other relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important information about the proposed Business Combination. The documents filed by DSAC with the SEC may be obtained free of charge at the SEC’s website at www.sec.gov.

 

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

 

Participants in the Solicitation

 

DSAC and its directors and executive officers may be deemed participants in the solicitation of proxies from DSAC’s shareholders with respect to the Business Combination. A list of the names of those directors and executive officers and a description of their interests in DSAC will be included in the proxy statement/prospectus for the Business Combination when available at www.sec.gov. Information about DSAC’s directors and executive officers and their ownership of DSAC shares is set forth in DSAC’s prospectus, dated October 28, 2020. Other information regarding the interests of the participants in the proxy solicitation will be included in the proxy statement/prospectus pertaining to the Business Combination when it becomes available. These documents can be obtained free of charge from the source indicated above.

 

 

 

 

FiscalNote and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of DSAC in connection with the 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 Business Combination when available.

 

Cautionary Statement Regarding Forward-Looking Statements

 

This communication contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements include, but are not limited to, statements about future financial and operating results, plans, objectives, expectations and intentions with respect to future operations, products and services; and other statements identified by words such as “will,” “are expected to,” “is anticipated,” “estimated,” “believe,” “intend,” “plan,” “projection,” “pro forma,” “outlook” or words of similar meaning. These forward-looking statements include, but are not limited to, statements regarding FiscalNote’s industry and market sizes, future opportunities for FiscalNote and DSAC, FiscalNote’s estimated future results and the proposed Business Combination between DSAC and FiscalNote, including pro forma market capitalization, pro forma revenue, the expected transaction and ownership structure and the likelihood, timing and ability of the parties to successfully consummate the proposed Business Combination. Such forward-looking statements are based upon the current beliefs and expectations of DSAC’s and FiscalNote’s management and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are difficult to predict and generally beyond DSAC’s or FiscalNote’s control. Actual results and the timing of events may differ materially from the results anticipated in these forward-looking statements.

 

Nothing in this Current Report on Form 8-K 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. Except as may be required by law, neither DSAC nor FiscalNote undertakes any duty to update these forward-looking statements.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
Number
  Description
   
2.1†   Business Combination Agreement
10.1†   Sponsor Agreement
10.2   Form of Subscription Agreement
10.3†   Forms of Voting and Support Agreement (for Institutions and Individuals)
10.4   Form of Amended and Restated Registration Rights Agreement
10.5   Backstop Agreement
99.1   Press Release, dated November 8, 2021
99.2   Investor Presentation

 

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.

 

 

 

 

SIGNATURE

 

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

 

Dated: November 8, 2021 DUDDELL STREET ACQUISITION CORP.
     
  By:

/s/ Manoj Jain

  Name: Manoj Jain
  Title: Chief Executive Officer

 

 

 

 

Exhibit 2.1

 

EXECUTION VERSION

 

AGREEMENT AND PLAN OF MERGER

 

by and among

 

Duddell Street ACQUISITION CORP.,

 

GRASSROOTS MERGER SUB, INC.,

 

and

 

FiscalNote Holdings, INC.

 

dated as of November 7, 2021

 

     

 

 

TABLE OF CONTENTS

 
    PAGE
Article 1       Certain Definitions 2
Section 1.01. Definitions 2
Section 1.02. Construction 17
Section 1.03. Knowledge 18
Article 2        Domestication 18
Section 2.01. Domestication 18
Section 2.02. Bylaws of DSAC 19
Section 2.03. Effects of the Domestication on the Share Capital of DSAC 19
Article 3        Merger; Closing 20
Section 3.01. Merger 20
Section 3.02. Effects of the Merger 20
Section 3.03. Closing; Effective Time 20
Section 3.04. Certificate of Incorporation and Bylaws of the Surviving Corporation 20
Section 3.05. Directors and Officers of the Surviving Corporation 20
Article 4       Effects of the Merger on the Company Shares; Closing Deliveries 21
Section 4.01. Closing Statement and Payment Spreadsheet 21
Section 4.02. Conversion of Company Shares 21
Section 4.03. Treatment of Company Options, Company Warrants and Company Convertible Notes 22
Section 4.04. Treatment of Company RSUs 22
Section 4.05. Merger Sub Shares 23
Section 4.06. Appraisal Shares 23
Section 4.07. Exchange Pool; Letter of Transmittal 24
Section 4.08. Closing Deliverables 24
Section 4.09. Exchange Agent 25
Section 4.10. No Liability; Withholding 25
Section 4.11. Earnout 26
Article 5        Representations and Warranties of the Company 28
Section 5.01. Corporate Existence and Power 28
Section 5.02. Corporate Authorization 28
Section 5.03. Governmental Authorizations; Consents 29
Section 5.04. Noncontravention 29
Section 5.05. Subsidiaries 29
Section 5.06. Capitalization 30
Section 5.07. Financial Statements 30
Section 5.08. Undisclosed Liabilities 31
Section 5.09. Absence of Changes 31
Section 5.10. Litigation and Proceedings 32
Section 5.11. Compliance with Laws; Permits 32
Section 5.12. Significant Contracts 32
Section 5.13. Intellectual Property 34
Section 5.14. Data Privacy and Security 36
Section 5.15. Company Benefit Plans 36
Section 5.16. Labor Matters 38
Section 5.17. Taxes 39
Section 5.18. Insurance 40
Section 5.19. Real Property; Assets 40
Section 5.20. Environmental Matters 41
Section 5.21. Affiliate Transactions 42
Section 5.22. Vendors 42
Section 5.23. Certain Business Practices; Anti-Corruption 42

 

   i  

 

 

Section 5.24. Registration Statement and Proxy Statement 43
Section 5.25. Brokers’ Fees 43
Section 5.26. No Additional Representations and Warranties; No Outside Reliance 43
Article 6        Representations and Warranties of the DSAC Parties 44
Section 6.01. Corporate Organization 44
Section 6.02. Corporate Authorization 44
Section 6.03. Governmental Authorities; Consents 45
Section 6.04. Noncontravention 45
Section 6.05. Litigation and Proceedings 45
Section 6.06. DSAC Capitalization 45
Section 6.07. Undisclosed Liabilities 46
Section 6.08. DSAC SEC Documents; Controls 46
Section 6.09. Listing 47
Section 6.10. Registration Statement and Proxy Statement 47
Section 6.11. Trust Account 47
Section 6.12. Absence of Certain Changes 48
Section 6.13. Compliance with Laws; Permits 48
Section 6.14. Contracts 48
Section 6.15. Employees and Employee Benefits Plans 48
Section 6.16. Properties 48
Section 6.17. Affiliate Transactions 48
Section 6.18. Taxes 49
Section 6.19. PIPE Investment 50
Section 6.20. Certain Business Practices; Anti-Corruption 51
Section 6.21. Independent Investigation 52
Section 6.22. Brokers’ Fees 52
Section 6.23. No Additional Representations and Warranties; No Outside Reliance 52
Article 7        Covenants of the Company 53
Section 7.01. Conduct of Business 53
Section 7.02. Inspection 55
Section 7.03. Termination of Certain Agreements 55
Section 7.04. Trust Account Waiver 55
Section 7.05. Written Consent; Drag-Along 55
Section 7.06. 280G Approval 56
Section 7.07. Potentially Continuing Convertible Notes 56
Article 8        Covenants of DSAC 56
Section 8.01. Conduct of Business 56
Section 8.02. NASDAQ Listing 57
Section 8.03. PIPE Subscription Agreements 57
Section 8.04. Backstop Agreement 58
Section 8.05. Section 16 of the Exchange Act 58
Section 8.06. Qualification as an Emerging Growth Company 58
Article 9        Joint Covenants 58
Section 9.01. Efforts to Consummate 58
Section 9.02. Indemnification and Insurance 59
Section 9.03. Tax Matters 60
Section 9.04. Proxy Statement; Registration Statement 60
Section 9.05. DSAC Shareholder Approval 62
Section 9.06. Newco Board of Directors 62
Section 9.07. Trust Account 62
Section 9.08. Form 8-K Filings 63

 

   ii  

 

 

Section 9.09. Incentive Equity Plan 63
Section 9.10. Employee Stock Purchase Plan 63
Section 9.11 No Shop 63
Section 9.12. Notification of Certain Matters 64
Article 10      Conditions to Obligations 64
Section 10.01. Conditions to Obligations of the DSAC Parties and the Company 64
Section 10.02. Conditions to Obligations of the DSAC Parties 64
Section 10.03. Conditions to the Obligations of the Company 65
Section 10.04. Satisfaction of Conditions 66
Article 11     Termination/Effectiveness 66
Section 11.01. Termination 66
Section 11.02. Effect of Termination 67
Article 12      Miscellaneous 67
Section 12.01. Non-Survival of Representations, Warranties and Covenants 67
Section 12.02. Waiver 67
Section 12.03. Notices 67
Section 12.04. Assignment 68
Section 12.05. Rights of Third Parties 68
Section 12.06. Expenses 68
Section 12.07. Governing Law 69
Section 12.08. Jurisdiction; WAIVER OF TRIAL BY JURY 69
Section 12.09. Headings and Captions; Counterparts 69
Section 12.10. Entire Agreement 69
Section 12.11. Amendments 69
Section 12.12. Publicity 69
Section 12.13. Severability 70
Section 12.14. Disclosure Schedules 70
Section 12.15. Enforcement 70
Section 12.16. Non-Recourse 71
Section 12.17. DSAC Legal Representation 71
Section 12.18. Company Legal Representation 71

 

   iii  

 

 

ANNEXES

 

Annex A – Form of Newco Certificate of Incorporation

Annex B – Form of Newco Bylaws

Annex C – Voting and Support Agreement

Annex D – Sponsor Letter Agreement

Annex E –  Backstop Agreement

Annex F – Form of Amended and Restated Registration Rights Agreement

Annex G – Certificate of Merger

Annex H – Form of Incentive Equity Plan

Annex I – Form of Employee Stock Purchase Plan 

Annex J – Form of Letter of Transmittal

Annex K – Form of Lock up Agreement

 

   iv  

 

 

AGREEMENT AND PLAN OF MERGER

 

This AGREEMENT AND PLAN OF MERGER (as it may be amended, restated or otherwise modified from time to time, this “Agreement”), dated as of November 7, 2021, is entered into by and among Duddell Street Acquisition Corp., a Cayman Islands exempted company (“DSAC”), Grassroots Merger Sub, Inc., a Delaware corporation and a wholly owned direct Subsidiary of DSAC (“Merger Sub” and, together with DSAC, the “DSAC Parties”), and FiscalNote Holdings, Inc., a Delaware corporation (the “Company”). DSAC, Merger Sub and the Company are referred to herein as the “Parties”. Section 1.01 sets forth definitions in respect of certain capitalized terms used in this Agreement, as well as cross-references to capitalized terms defined elsewhere in this Agreement.

 

RECITALS

 

WHEREAS, DSAC is a blank check company incorporated as a Cayman Islands exempted company and formed for the purpose of effecting a merger, share exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;

 

WHEREAS, at least one day prior to the Closing, upon the terms and subject to the conditions of this Agreement, DSAC will domesticate as a Delaware corporation (“Newco”) in accordance with the DGCL and the Cayman Islands Companies Act (the “Domestication”);

 

WHEREAS, concurrently with the Domestication, DSAC will file a certificate of incorporation (the “Newco Certificate of Incorporation”) with the Secretary of State of Delaware substantially in the form attached as Annex A hereto, which will, among other things, implement a dual-class stock structure wherein Newco’s common stock will consist of Newco Class A Common Stock, which will entitle the holders thereof to one vote per share on all voting matters, and Newco Class B Shares Common Stock, which will carry economic rights (including dividend and liquidation rights) identical to those carried by the Newco Class A Common Stock but will entitle the holders thereof to twenty five (25) votes per share on all voting matters (the “Dual-Class Stock Structure”), and adopt bylaws substantially in the form attached as Annex B hereto;

 

WHEREAS, at least one day following the Domestication Effective Time, upon the terms and subject to the conditions of this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company, whereupon the separate corporate existence of Merger Sub shall cease and the Company shall be the surviving corporation and continue its existence under the DGCL;

 

WHEREAS, the respective boards of directors or equivalent governing bodies of each of the DSAC Parties and the Company have unanimously approved and declared advisable the transactions contemplated by this Agreement (including, as applicable, the Domestication, the Merger and the issuance of Newco Common Stock in connection with the Merger) upon the terms and subject to the conditions of this Agreement and in accordance with the Cayman Islands Companies Act and the DGCL, as applicable;

 

WHEREAS, prior to the Merger, DSAC will provide an opportunity to its shareholders to have their issued and outstanding DSAC Class A Ordinary Shares redeemed on the terms and subject to the conditions set forth in the Amended and Restated Memorandum and Articles of Association of DSAC, effective as of October 28, 2020 (as may be amended, restated or otherwise modified from time to time, the “DSAC Governing Document”), in connection with the transactions contemplated by this Agreement;

 

WHEREAS, concurrently with the execution and delivery of this Agreement, and as an inducement to DSAC’s willingness to enter into this Agreement, certain Company Shareholders have entered into a Voting and Support Agreement with DSAC attached as Part I or Part II of Annex C hereto (the “Voting and Support Agreement”);

 

WHEREAS, promptly following the effectiveness of the Registration Statement, the Company will obtain the approval of this Agreement and the transactions contemplated hereby, including the Company Recapitalization and the Merger, by Company Shareholders comprising the Required Company Shareholders pursuant to a written consent in form and substance reasonably acceptable to DSAC (the “Company Shareholder Approval”), and deliver a copy of the Company Shareholder Approval to DSAC;

 

     

 

 

WHEREAS, concurrently with the execution and delivery of this Agreement, (i) DSAC, Sponsor, the Company, and the other persons named therein and party thereto, have entered into a Sponsor Letter Agreement attached as Annex D hereto (the “Sponsor Letter Agreement”), and (ii) DSAC and certain investment funds affiliated to Sponsor (the “Backstop Parties”) have entered into a Backstop Agreement attached as Annex E hereto (the “Backstop Agreement”);

 

WHEREAS, concurrently with the consummation of the transactions contemplated by this Agreement, DSAC will cause the Registration Rights Agreement, dated November 2, 2020, to be amended and restated in the form of the Amended and Restated Registration Rights Agreement attached as Annex F hereto (the “Amended and Restated Registration Rights Agreement”);

 

WHEREAS, prior to or concurrently with the execution and delivery of this Agreement, the PIPE Investors and DSAC have entered into subscription agreements (the “PIPE Subscription Agreements”) pursuant to which the PIPE Investors have agreed to purchase an aggregate of 10,000,000 shares of Newco Class A Common Stock at the Reference Price immediately prior to the Effective Time (the “PIPE Financing” and the aggregate amount of the PIPE Financing, the “PIPE Financing Amount”);

 

WHEREAS, prior to the Closing, in order to facilitate the consummation of the transactions contemplated hereby (including the Merger and the implementation of the Dual-Class Stock Structure), the Company will be recapitalized such that, immediately prior to the Merger Effective Time, the Company’s authorized capital stock shall consist solely of Company Class A Shares and Company Class B Shares (the “Company Recapitalization”); and

 

WHEREAS, for U.S. federal income Tax purposes, the Parties intend that (i) the Domestication will qualify as a “reorganization” pursuant to Section 368(a)(1)(F) of the Code and the Treasury Regulations promulgated thereunder, and (ii) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder, and this Agreement is intended to be and is adopted as a “plan of reorganization” within the meaning of Sections 354 and 361 of the Code.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound hereby, the DSAC Parties and the Company agree as follows:

 

Article 1
Certain Definitions

 

Section 1.01.           Definitions. As used herein, the following terms shall have the following meanings:

 

Acquisition Transaction” has the meaning given to such term in Section 9.11.

 

Action” means any claim, action, suit, investigation, litigation, claim (including any crossclaim or counterclaim), assessment, arbitration, charge or proceeding (including any civil, criminal, administrative, arbitral, investigative or appellate proceeding), in each case, that is by or before any Governmental Authority.

 

Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.

 

2

 

 

Affiliated Group” means an affiliated group as defined in Section 1504 of the Code (or analogous combined, consolidated or unitary group defined under applicable Tax Law).

 

Affiliate Transactions” has the meaning given to such term in Section 5.21(c)(iii).

 

Agreement” has the meaning given to such term in the preamble hereto.

 

Aggregate Consideration” means a number of shares of Newco Common Stock equal to the quotient of (a) the Company Value, divided by (b) ten dollars ($10.00).

 

Amended and Restated Registration Rights Agreement” has the meaning given to such term in the recitals hereto.

 

Ancillary Agreements” means the Voting and Support Agreement, the Sponsor Letter Agreement, the Backstop Agreement, the Amended and Restated Registration Rights Agreement, the Lock-Up Agreements, the Letters of Transmittal, the Newco Certificate of Incorporation, the Newco Bylaws and the other agreements, instruments and documents expressly contemplated hereby.

 

Announcement 8-K” has the meaning given to such term in Section 9.08.

 

Annual Financial Statements” has the meaning given to such term in Section 5.07(a).

 

Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act or any rules or regulations thereunder, the U.K. Bribery Act, any legislation implementing the Organisation for Economic Cooperation and Development Convention on Combating Bribery of Foreign Pubic Officials in International Business Transactions, and all other Applicable Laws regarding anti-corruption and bribery or illegal payments or gratuities.

 

Anti-Money Laundering Laws” has the meaning given to such term in Section 5.23(e).

 

Antitrust Laws” means any federal, state, provincial, territorial and foreign statutes, rules, regulations, Governmental Orders, administrative and judicial doctrines and other Applicable Laws that are designed or intended to prohibit, restrict or regulate foreign investment or actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

 

Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person.

 

Appraisal Shares” has the meaning given to such term in Section 4.06(a).

 

Audited Financial Statements” has the meaning given to such term in Section 9.04(c).

 

Available Cash” means, as of immediately prior to the Closing, an amount equal to the sum of (i) the amount of cash available to be released from the Trust Account (after giving effect to all payments to be made as a result of the completion of all DSAC Share Redemptions), plus (ii) the net amount of proceeds actually received by DSAC pursuant to the PIPE Financing, plus (iii) if applicable, the net amount of proceeds actually received by DSAC pursuant to the Backstop Agreement, minus (iv) the lesser of (A) the Company Transaction Expenses and (B) $5,000,000, minus (v) the lesser of (A) the DSAC Transaction Expenses and (B) $30,000,000.

 

Backstop Agreement” has the meaning given to such term in the recitals hereto.

 

Backstop Amount” means up to $175,000,000 in proceeds from the sale by DSAC to the Backstop Parties of up to 17,500,000 shares of Newco Class A Common Stock at a price per share equal to $10.00 immediately prior to (and contingent upon) the Closing, contingent upon the terms of and subject to the conditions set forth in the Backstop Agreement.

 

3

 

 

Backstop Parties” has the meaning given to such term in the recitals hereto.

 

Business Combination” has the meaning given to such term in the DSAC Governing Document.

 

Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or San Francisco, California are authorized or required by Applicable Law to close.

 

CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act.

 

Cayman Islands Companies Act” means the Companies Act (As Revised) of the Cayman Islands.

 

Cayman Islands Registrar of Companies” means the Registrar of Companies of the Cayman Islands under the Cayman Islands Companies Act.

 

Certificate of Merger” has the meaning given to such term in Section 3.01(a).

 

CFIUS” means the Committee on Foreign Investment in the United States or each member agency thereof acting in such capacity.

 

CFIUS Approval” shall be deemed to have been obtained if: (a) CFIUS determines in writing that none of the transactions contemplated by this Agreement singly or collectively constitutes a “covered transaction” as defined under the DPA and therefore none of them is subject to review under the DPA; (b) the Parties receive written notice from CFIUS stating that CFIUS has concluded all action under the DPA with respect to the transactions contemplated by this Agreement and has determined that there are no unresolved national security concerns or (c) CFIUS shall have sent a report to the President of the United States requesting the President’s decision and the President has announced a decision not to take any action to suspend or prohibit or place any limitation on the transactions contemplated by this Agreement, or the time permitted by law for such action shall have lapsed.

 

Closing” has the meaning given to such term in Section 3.03.

 

Closing Company Cash” means all cash and cash equivalents held by the Company and its Subsidiaries immediately prior to the Closing.

 

Closing Company Indebtedness” means all Indebtedness of the Company and its Subsidiaries immediately prior to the Closing.

 

Closing Date” has the meaning given to such term in Section 3.03.

 

Closing Press Release” has the meaning given to such term in Section 9.08.

 

Code” means the Internal Revenue Code of 1986, as amended.

 

Company” has the meaning given to such term in the preamble hereto.

 

Company Benefit Plan” has the meaning given to such term in Section 5.15(a).

 

Company Board” means the board of directors of the Company.

 

Company Class A Common Stock” means Class A common stock, par value $0. 00001 per share, of the Company.

 

4

 

 

Company Class B Common Stock” means Class B common stock, par value $0. 00001 per share, of the Company.

 

Company Common Stock” means common stock, par value $0.00001 per share, of the Company.

 

Company Convertible Note” means any Subordinated Convertible Promissory Note issued by the Company (the holder of any such Company Convertible Note, a “Company Noteholder”).

 

Company Cure Period” has the meaning given to such term in Section 11.01(d).

 

Company Designees” has the meaning given to such term in Section 9.06.

 

Company Disclosure Schedule” means the confidential disclosure schedule delivered by the Company to DSAC concurrently with the execution and delivery of this Agreement.

 

Company Equity Plan” means the FiscalNote, Inc. 2013 Equity Incentive Plan, as amended.

 

Company Equity Securities” means Equity Securities in the Company.

 

Company IT Systems” means any and all computers, Software, servers, workstations, routers, hubs, switches, racks, PCs, laptops, terminals, data communications lines and all other information technology assets, systems or equipment, including all documentation related to the foregoing, owned by, or licensed or leased to, used or held for use by the Company or any of its Subsidiaries.

 

Company Material Adverse Effect” means any effect, development, event, occurrence, fact, condition, circumstance or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole; provided, however, that no effect, development, event, occurrence, fact, condition, circumstances or change, to the extent resulting from any of the following, either alone or in combination, shall be deemed to constitute a “Company Material Adverse Effect”, or be taken into account in determining whether a “Company Material Adverse Effect” has occurred or would reasonably be expected to occur: (i) any change in Applicable Laws or GAAP, or regulatory policies or interpretations thereof; (ii) any change in interest rates or economic, financial or market conditions generally; (iii) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement (or the obligations hereunder), including the impact thereof on relationships with customers, suppliers or employees; provided that this clause (iii) shall not prevent a determination that a breach of any representation and warranty set forth herein which addresses the consequences of the execution and performance of this Agreement or the consummation of the Merger has resulted in or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect; (iv) any change generally affecting any of the industries or markets in which the Company or any of its Subsidiaries operates; (v) any acts of war, sabotage, civil unrest or terrorism, changes in global, national, regional, state or local political or social conditions, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster or act of God, epidemic or pandemic (including the COVID-19 Pandemic), and any other force majeure event (natural or man-made), or any worsening of any of the foregoing; (vi) the compliance with the express terms of this Agreement, including any actions required to be taken, or required not to be taken, pursuant to the terms of this Agreement or otherwise taken at the prior written request of DSAC or omitted to be taken to the extent attributable to DSAC unreasonably withholding its consent pursuant to Section 7.01; or (vii) in and of itself, the failure of the Company and its Subsidiaries, taken as a whole, to meet any projections, forecasts or budgets or estimates of revenues, earnings or other financial metrics for any period; provided that this clause (vii) shall not prevent a determination that any change or effect underlying such failure to meet projections, forecasts or budgets has resulted in or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect, except in the case of clauses (i), (ii) and (iv), to the extent that any such effect, development, event, occurrence, fact, condition, circumstance or change has a disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other participants in the industry in which the Company and its Subsidiaries operate.

 

5

 

 

Company Options” means each outstanding and unexercised option to purchase shares of common stock of the Company issued pursuant to the Company Equity Plan, whether or not then vested or fully exercisable, granted prior to the Effective Time to any current or former Service Provider of the Company (each such Service Provider, a “Company Optionholder”).

 

Company Permits” has the meaning given to such term in Section 5.11(b).

 

Company PII” means any and all Personal Data that is Processed by or on behalf of the Company or its Subsidiaries in connection with the development, marketing, delivery, servicing, use or other exploitation of the Company’s or its Subsidiaries’ products, services or operations.

 

Company Preferred Stock” means (A) Series A preferred stock, par value $0.00001 per share, of the Company, (B) Series B preferred stock, par value $0.00001 per share, of the Company, (C) Series C preferred stock, par value $0.00001 per share, of the Company, (D) Series C-1 preferred stock, par value $0.00001 per share, of the Company, (E) Series D preferred stock, par value $0.00001 per share, of the Company, (F) Series D-1 preferred stock, par value $0.00001 per share, of the Company, (G) Series E preferred stock, par value $0.00001 per share, of the Company, (H) Series F preferred stock, par value $0.00001 per share, of the Company and (I) Series G preferred stock, par value $0.00001 per share, of the Company.

 

Company Privacy Policies” means all current and, to the extent applicable, prior public or internal policies, procedures and representations of the Company or its Subsidiaries to the extent relating to data security or the Processing of Personal Data.

 

Company RSU” means each outstanding and unexercised right to acquire shares of common stock of the Company issued pursuant to any restricted stock unit agreement issued pursuant to the Company Equity Plan, whether or not then vested or fully exercisable, granted prior to the Effective Time (each Company RSU holder, a “Company RSU Holder”).

 

Company Shareholder Approval” has the meaning given to such term in the recitals hereto.

 

Company Shareholders” means the holders of Company Shares.

 

Company Shares” means shares of Company Common Stock and shares of Company Preferred Stock.

 

Company Shares Outstanding” means, without duplication, as of immediately before the Effective Time, the sum of: (i) the number of issued and outstanding Company Shares (taking into account the Company Shares issued or issuable immediately prior to Closing as a result of any exercise or conversion of Company Equity Securities contingent upon the Closing); and (ii) the number of shares of Company Common Stock issued or issuable upon the exercise of all Vested Company Options and Company Warrants and settlement of Vested Company RSUs and conversion of Company Convertible Notes, if any, that have not, and will not immediately prior to Closing, be converted.

 

Company Transaction Expenses” means (i) all of the fees, costs and expenses incurred by the Company solely in connection with, in anticipation of or incident to the negotiation, execution, and delivery of this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby, or in connection with or in anticipation of any alternative transactions with respect to the Company, including all fees, costs and expenses payable to attorneys, financial advisors or accountants, and all obligations under any engagement letter or other agreement or understanding with J.P. Morgan Securities LLC or any other investment bank or broker, and (ii) all payments by the Company to obtain any third party consent required under any Contract of the Company in connection with the consummation of the transactions contemplated by this Agreement.

 

Company Value” means an amount equal to (i) $1,000,000,000 plus (ii) the aggregate exercise price payable with respect to each Vested Company Option and Company Warrant.

 

Company Waiving Parties” has the meaning given to such term in Section 12.17.

 

6

 

 

Company Warrants” means each outstanding and unexercised warrant to purchase Company Shares (each holder of a Company Warrant, a “Company Warrantholder”).

 

Completion 8-K” has the meaning given to such term in Section 9.08.

 

Confidentiality Agreement” means that certain Mutual Confidentiality Agreement, dated as of May 20, 2021, by and between DSAC and the Company.

 

Contracts” means any contract, agreement, subcontract, lease, sublease, license, sublicense, conditional sales contract, purchase or service order, license, indenture, note, bond, loan, understanding, undertaking, commitment or other arrangement or instrument, including any exhibits, annexes, appendices and attachments thereto and any amendments, statements of work, modifications, supplements, extensions or renewals thereto, whether written or oral.

 

COVID-19 Pandemic” means the novel coronavirus (SARS-CoV-2 or COVID-19), and any evolutions, mutations or variations thereof or any other related or associated public health condition, emergency, epidemics, pandemics or disease outbreaks.

 

Damages” means all fines, losses, damages, liabilities, penalties, judgments settlements, assessments and other reasonable costs and expenses (including reasonable legal, attorneys’ and other experts’ fees).

 

DGCL” means the Delaware General Corporation Law.

 

Domestication” has the meaning given to such term in the recitals hereto.

 

Domestication Effective Time” has the meaning given to such term in Section 2.01.

 

DPA” means Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C.§ 4565), and all rules and regulations issued and effective thereunder.

 

DSAC” has the meaning given to such term in the preamble hereto.

 

DSAC Board Recommendation” has the meaning given to such term in Section 6.02(c).

 

DSAC Class A Ordinary Shares” means Class A ordinary shares, par value $0.0001 per share, of DSAC.

 

DSAC Class B Ordinary Shares” means Class B ordinary shares, par value $0.0001 per share, of DSAC.

 

DSAC Common Warrant” means a right to acquire DSAC Ordinary Shares that was included in the units sold as part of DSAC’s initial public offering.

 

DSAC Cure Period” has the meaning given to such term in Section 11.01(e).

 

DSAC Disclosure Schedule” means the confidential disclosure schedule delivered by DSAC to the Company concurrently with the execution and delivery of this Agreement.

 

DSAC Extraordinary General Meeting” has the meaning given to such term in Section 9.05(a).

 

DSAC Financials” has the meaning given to such term in Section 6.08(b).

 

DSAC Governing Document” has the meaning given to such term in the recitals hereto.

 

DSAC Material Adverse Effect” means any effect, development, event, occurrence, fact, condition, circumstance or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the ability of the DSAC Parties to timely consummate the Closing (including the Merger) on the terms set forth herein or to perform their agreements or covenants hereunder.

 

7

 

 

DSAC Material Contract” has the meaning given to such term in Section 6.14.

 

DSAC Ordinary Shares” means DSAC Class A Ordinary Shares and DSAC Class B Ordinary Shares.

 

DSAC Parties” has the meaning given to such term in the preamble hereto.

 

DSAC Share Redemption” means the election of an eligible (as determined in accordance with the DSAC Governing Document) Pre-Closing DSAC Holder to exercise its DSAC Shareholder Redemption Right in connection with the consummation of the transactions contemplated by this Agreement.

 

DSAC Shareholder Approval” means the approval of the Transaction Proposals (other than the Transaction Proposal contemplated by clause (ix) of the definition thereof), in each case, by at least two-thirds of votes cast by the holders of DSAC Ordinary Shares at the DSAC Extraordinary General Meeting, or such other standard as may be applicable to a specific Transaction Proposal, in accordance with the Proxy Statement and the DSAC Governing Document.

 

DSAC Shareholder Redemption Right” means the right to elect an IPO Redemption, as such term is defined in Article 163 of the DSAC Governing Document.

 

DSAC Sponsor Warrant” means a right to acquire DSAC Ordinary Shares that was issued to Sponsor in a private placement as part of DSAC’s initial public offering.

 

DSAC Transaction Expenses” means (i) all of the fees, costs and expenses incurred by the DSAC Parties in connection with, in anticipation of or incident to the negotiation, execution, and delivery of this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby, or in connection with or in anticipation of any alternative transactions with respect to the DSAC Parties, including all fees, costs and expenses payable to attorneys, financial advisors or accountants, and all obligations under any engagement letter or other agreement or understanding with Citigroup Global Markets Inc., J.P. Morgan Securities LLC or any other investment bank or broker, and (ii) all payments by any DSAC Party to obtain any third party consent required under any Contract in connection with the consummation of the transactions contemplated by this Agreement. For the avoidance of doubt, DSAC Transaction Expenses shall (i) include all deferred initial purchaser and underwriting compensation incurred by DSAC in connection with its initial public offering, and (ii) not include any Company Transaction Expenses.

 

DSAC Warrants” means DSAC Common Warrants and DSAC Sponsor Warrants.

 

Earnout Issuance Number” means that number of shares of Newco Class A Common Stock equal to 3% of the number of shares of Newco Common Stock outstanding immediately after Closing.

 

Earnout Period” means the time period beginning on the Closing Date and ending on the five-year anniversary of the Closing Date.

 

Earnout RSUs” means a restricted stock unit in respect of one share of Newco Class A Common Stock issued in accordance with Section 4.11(e).

 

Earnout RSU Share” means a share of Newco Class A Common Stock issued in settlement of an Earnout RSU in accordance with Section 4.11(e).

 

Earnout Shares” means the shares of Newco Class A Common Stock issued to the applicable Eligible Company Equityholders in accordance with Section 4.11(a).

 

Effective Time” has the meaning given to such term in Section 3.03.

 

8

 

 

Eligible Company Equityholders” means, with respect to a Triggering Event, each holder, as of immediately prior to the Effective Time, of (i) a Company Share, (ii) a Company Option, (iii) a Company RSU, or (iv) a Company Warrant. The Eligible Company Equityholders with respect to a Triggering Event shall include the holder of a Company Option to the extent (a) the Converted Option related to such Company Option was vested upon the Effective Time, (b) the Converted Option related to such Company Option became vested after the Effective Time but prior to such Triggering Event, as applicable, or (c) the Converted Option related to such Company Option remained outstanding but unvested as of such Triggering Event, as applicable. The Eligible Company Equityholders with respect to a Triggering Event shall not include the holder of a Company Option or Company RSU to the extent the Converted Option or Converted RSU related to such Company Option or Company RSU, as applicable, was forfeited after the Effective Time but prior to such Triggering Event, as applicable, regardless of whether, at the time of such forfeiture, the Converted Option or Converted RSU was vested or unvested.

 

Environmental Laws” means any Applicable Law relating to pollution or the protection of the environment, including those related to the use, generation, treatment, storage, handling, emission, transportation, disposal or Release of Hazardous Materials, each as in effect on and as interpreted as of the date of this Agreement.

 

Equity Security” means (i) any share capital, partnership interest, membership interest or unit, capital stock, equity interest, voting security or other ownership interest, (ii) any other interest or participation (including phantom units or interests) that confers on a Person the right to receive a unit of the profits and losses of, or distribution of assets of, the issuing entity (including any “profits interests”), (iii) any subscription, call, warrant, option, restricted share, restricted stock unit, stock appreciation right, performance unit, incentive unit or other commitment of any kind or character relating to, or entitling any Person to purchase or otherwise acquire, any of the foregoing and (iv) any security convertible into or exercisable or exchangeable for any of the foregoing.

 

ERISA” has the meaning given to such term in Section 5.15(a).

 

Exchange Act” has the meaning given to such term in Section 6.08(a).

 

Exchange Agent” has the meaning given to such term in Section 4.07(a).

 

Exchange Agent Agreement” means an exchange agent agreement in customary form to be entered into between Newco and the Exchange Agent.

 

Exchange Pool” has the meaning given to such term in Section 4.07(a).

 

Exchange Ratio” means the quotient obtained by dividing (i) the Per Share Equity Value by (ii) the Reference Price.

 

Financial Statements” has the meaning given to such term in Section 5.07(a).

 

GAAP” means United States generally accepted accounting principles as in effect from time to time.

 

Governmental Authority” means any supra-national, federal, regional, state, provincial, municipal, local, or foreign government, governmental authority, regulatory or administrative agency, governmental commission, governmental department, governmental agency or instrumentality, court, arbitral body or tribunal, including any political subdivision thereof and any entity or enterprise owned or controlled thereby, or NASDAQ or any self-regulatory organization or arbitral body (public or private) , or any public international organization.

 

Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, issued, promulgated, made or entered by or with any Governmental Authority.

 

Government Official” means any public or elected official or officer, employee (regardless of rank), or person acting on behalf of a national, provincial, or local government, including a department, agency, instrumentality, state-owned or state-controlled company, public international organization (such as the United Nations or World Bank), or non-U.S. political party, non-U.S. party official or any candidate for political office. Officers, employees (regardless of rank), or persons acting on behalf of an entity that is financed in large measure through public appropriations, is widely perceived to be performing government functions, or has its key officers and directors appointed by a government should also be considered “Government Officials.”

 

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Hazardous Material” means material, substance or waste that is listed, regulated, or otherwise defined as “hazardous,” “toxic,” or “radioactive,” (or words of similar intent or meaning) under applicable Environmental Law, including but not limited to petroleum, petroleum by-products, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable or explosive substances, or pesticides.

 

Holders” means all Persons who hold one or more Company Shares as of immediately prior to the Effective Time.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

 

Identified Company Indebtedness” means the Indebtedness of the Company set forth in Section 1.01(a) of the Company Disclosure Schedule, in the payment amounts as of the Closing Date as determined in accordance with Section 4.01.

 

Incentive Equity Plan” has the meaning given to such term in Section 9.09.

 

Indebtedness” means with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the principal of and premium (if any) in respect of all indebtedness for borrowed money, including accrued interest and any per diem interest accruals, (b) the principal and interest components of capitalized lease obligations under GAAP, (c) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees, bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn), (d) the principal of and premium (if any) in respect of obligations evidenced by bonds, debentures, notes and similar instruments, (e) the termination value of interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby), and (f) breakage costs, prepayment or early termination premiums, penalties, or other fees or expenses payable as a result of the consummation of the transactions contemplated by this Agreement in respect of any of the items in the foregoing clauses (a) through (e), and (g) all Indebtedness of another Person referred to in clauses (a) through (f) above guaranteed directly or indirectly, jointly or severally.

 

Insurance Policy” means all material policies of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the Company or any of its Subsidiaries as of the date of this Agreement.

 

Intellectual Property” means any and all intellectual property and similar proprietary rights in any jurisdiction throughout the world, whether registered or unregistered, including any and all of the following: (i) patents and patent applications (together with any and all re-issuances, continuations, continuations-in-part, divisionals, revisions, provisionals, renewals, extensions and reexaminations of any of the foregoing),), (ii) trademarks, service marks, trade dress, trade names, service names, brand names, corporate names, logos, social media accounts and any and all other indications of origin, including all goodwill associated therewith, (iii) designs copyrights, works of authorship (including Software), mask work rights and any and all renewals, extensions, reversions, restorations, derivative works and moral rights in connection with the foregoing, now or hereafter provided by Applicable Law, regardless of the medium of fixation or means of expression, (iv) Internet domain names, (v) trade secrets, know-how (including manufacturing and production processes and research and development information), confidential and proprietary information, including processes, data, inventions, technical data, algorithms, formulae, procedures, protocols, techniques, results of experimentation and testing, and business information (including financial and marketing plans, customer and supplier lists, and pricing and cost information), (vi) rights of publicity and privacy, (vii) all registrations and applications (whether provisional, pending or final) to register, and renewals of any of the foregoing, and all common law rights thereto, and (viii) all rights to sue or recover and retain damages and costs and attorneys’ fees for past, present and future infringement, misappropriation or other violation of any of the foregoing.

 

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International Plan” means any Company Benefit Plan that is not a US Plan.

 

Intended Tax Treatment” has the meaning given to such term in Section 9.03(a).

 

Interim Financial Statements” has the meaning given to such term in Section 5.07(a).

 

Interim Period” has the meaning given to such term in Section 7.01.

 

Labor Contract” has the meaning given to such term in Section 5.12(a)(v).

 

Leakage” means, without duplication, to the extent paid or incurred after the date hereof and prior to the Closing Date, in each case, other than Permitted Leakage: (i) any dividend (whether in the form of cash or other property) or distribution declared, made or paid, by the Company or any Subsidiary of the Company to any Related Party; (ii) any repurchase or redemption of any Equity Securities of the Company or any Subsidiary of the Company, other than any such repurchase or redemption of any Equity Securities by any Subsidiary of the Company of any Equity Securities owned by the Company or any of its Subsidiaries; (iii) any waiver or release (A) in favor of any Related Party of any sum or obligation owing by any such Related Party to the Company or any of its Subsidiaries or (B) of any claims or rights of the Company or any of its Subsidiaries against any such Related Party, in each case, other than as expressly contemplated by this Agreement; (iv) any payments of any nature made to (or assets transferred to) any Related Party by the Company or any of its Subsidiaries; (v) any liabilities assumed or incurred for the benefit of any Related Party by the Company or any of its Subsidiaries, other than as expressly contemplated by this Agreement; (vi) the creation of any Lien over any asset of any Company or any of its Subsidiaries for the benefit of any Related Party (not including any benefit arising by virtue of the Related Party’s Equity Securities in the Company); (vii) any discharge or waiver by the Company or any of its Subsidiaries of any liability or obligation of any Related Party; or (viii) any agreement or arrangement made or entered into by the Company or any of its Subsidiaries to do or give effect to any matter referred to in clause (i) through clause (vii) above.

 

Leased Real Property” means all real property and interests in real property leased, subleased or otherwise occupied or used (but not owned in fee simple) by the Company or any of its Subsidiaries.

 

Letter of Transmittal” means a letter of transmittal in the form attached hereto as Annex J hereto, with such additional changes as may be reasonably acceptable to each of DSAC and the Company.

 

Licensed Intellectual Property” means any and all Intellectual Property owned by a third party and licensed or sublicensed (or purported to be licensed or sublicensed) to either the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries has obtained a covenant not to be sued.

 

Lien” means, with respect to any property or asset, any mortgage, deed of trust, pledge, hypothecation, encumbrance, security interest, licenses, options, rights of first refusal, rights of first offer or other lien or similar adverse claim of any kind in respect of such property or asset.

 

Lock-Up Agreement” means a Lock-Up Agreement substantially in the form attached as Annex K hereto entered into between DSAC and any Company Shareholder after the date hereof pursuant to Section 4.07(b).

 

Merger” has the meaning given to such term in Section 3.01(a).

 

Merger Sub” has the meaning given to such term in the preamble hereto.

 

Minimum Cash” means $190,000,000.

 

NASDAQ” means the NASDAQ Stock Exchange.

 

Newco” has the meaning given to such term in the recitals hereto.

 

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Newco Board” has the meaning given to such term in Section 9.06.

 

Newco Bylaws” has the meaning given to such term in Section 2.02.

 

Newco Certificate of Incorporation” has the meaning given to such term in the recitals hereto.

 

Newco Class A Common Stock” means Class A common stock of Newco, as set forth in the Newco Certificate of Incorporation.

 

Newco Class B Common Stock” means Class B common stock of Newco, as set forth in the Newco Certificate of Incorporation.

 

Newco Common Stock” means Newco Class A Common Stock and Newco Class B Common Stock.

 

Newco Common Warrant” has the meaning given to such term in Section 2.03(c).

 

Offer Documents” has the meaning given to such term in Section 9.04(b).

 

Open Source Software” means Software that (i) is distributed as free Software, open source Software, copyleft Software or similar licensing or distribution models, or (ii) requires as a condition of use, modification or distribution (including under an ASP or “software as a service” model) of such Software that other Software using, incorporating, linking, integrating or distributing or bundling with such Software be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works or (c) redistributable at no charge. “Open Source Software” includes Software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) the Apache Software Foundation License, (B) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), (C) The Artistic License (e.g., PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Industry Standards License (SISL), (H) Affero General Public License (AGPL), (I) Common Development and Distribution License (CDDL) or (J) any license or distribution agreements or arrangements now listed as open source licenses on www.opensource.org or any successor website thereof or in the Free Software Directory maintained by the Free Software Foundation on http://directory.fsf.org/ or any successor website thereof.

 

Ordinary Course of Business” means, at any given time, the ordinary and usual course of operations of the business of the Company and its Subsidiaries (as applicable), consistent with past practice, subject to any reasonable changes required to address any then current facts and circumstances (including requirements to comply with Applicable Law).

 

Owned Intellectual Property” means any and all Intellectual Property owned (or purported to be owned) by the Company or any of its Subsidiaries.

 

Parties” has the meaning given to such term in the preamble hereto.

 

PCAOB” means the U.S. Public Company Accounting Oversight Board.

 

Per Share Earnout Consideration” means, with respect to each Triggering Event, a number of shares of Newco Common Stock equal to (i) the Earnout Issuance Number, divided by (ii) the sum of (A) the Company Shares Outstanding, plus (B) the number of shares of Company Common Stock issued or exercisable upon the exercise of all Unvested Company Options and settlement of Unvested Company RSUs as of immediately prior to the Closing (excluding any such Unvested Company Options and Unvested Company RSUs to the extent the applicable Earnout RSUs issued with respect to such Unvested Company Option or Unvested Company RSU has been forfeited and not reallocated pursuant to Section 4.11(e) prior to such Triggering Event).

 

Per Share Equity Value” means the quotient obtained by dividing (i) the Company Value, by (ii) the Company Shares Outstanding.

 

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Per Share Merger Consideration” means (i) other than as provided in clause (ii), with respect to any Company Share that is issued and outstanding immediately prior to the Effective Time, a number of shares of Newco Class A Common Stock equal to the Exchange Ratio and (ii) with respect to any share of Company Class B Common Stock, a number of shares of Newco Class B Common Stock equal to the Exchange Ratio.

 

Permits” means all permits, licenses, certificates of authority, authorizations, approvals, registrations, clearances, orders, variances, exceptions or exemptions and other similar consents issued by or obtained from a Governmental Authority.

 

Permitted Leakage” means (i) any repurchase or redemption of any Equity Securities of the Company or any of its Subsidiaries by the Company or any of its Subsidiaries, as applicable, in the Ordinary Course of Business in connection with the termination of employment of any employee of the Company or its Subsidiaries, (ii) any payment by the Company or any of its Subsidiaries to (or on behalf of, or for the benefit of) any Related Party in respect of salary, bonus or other ordinary course compensation, director or manager fees, reimbursement or advancement of expenses, indemnification or other benefits due to such individual in their capacity as an employee, independent contractor or director of the Company or any of its Subsidiaries, together with any employer-paid portion of any employment or payroll Taxes related thereto, in each case, in the Ordinary Course of Business or (iii) any payments made by the Company or any of its Subsidiaries to a Related Party in the Ordinary Course of Business pursuant to any of the Affiliate Transactions, or (iv) any Tax payable by the Company or any of its Subsidiaries as a result of any of clauses (i) through (iii) above.

 

Permitted Liens” means (i) statutory or common law mechanics, materialmen, warehousemen, landlords, carriers, repairmen and construction contractors and other similar Liens that arise in the Ordinary Course of Business and which are not yet due and payable or which are being contested in good faith through appropriate Actions, (ii) pledges or deposits incurred in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other social security legislation, (iii) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Actions and for which appropriate reserves have been made in accordance with GAAP, (iv) Liens on real property (including zoning, building, or other similar restrictions, variances, covenants, rights of way, encumbrances, easements, covenants, rights of way and similar restrictions of record and irregularities in title) that do not, individually or in the aggregate, materially interfere with the ownership, operation, value, or present uses of such real property, (v) statutory, common law and contractual Liens of landlords with respect to leased real property and the rights of lessors under any leases, (vi)  purchase money Liens and Liens securing rental payments in connection with capital lease obligations of the Company, (vii) Liens that do not materially interfere with the present ownership, value or use of the assets of the Company or the rights of the Company under its licenses or leases, individually or in the aggregate, and (vii) Liens described on Section 1.01(b) of the Company Disclosure Schedule.

 

Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.

 

Personal Data” means all data that identifies a natural individual or, in combination with any other information or data available to the Company or any of its Subsidiaries, is capable of identifying or location an individual.

 

PIPE Financing” has the meaning given to such term in the recitals hereto.

 

PIPE Financing Amount” has the meaning given to such term in the recitals hereto.

 

PIPE Investors” means those Persons who are participating in the PIPE Financing pursuant (and signatory) to a PIPE Subscription Agreement entered into with DSAC on or prior to the date hereof.

 

PIPE Subscription Agreements” has the meaning given to such term in the recitals hereto.

 

PPP Loans” means those certain loans listed on Section 1.01(c) of the Company Disclosure Schedule.

 

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Pre-Closing DSAC Holders” means, at any time, the Members (as defined in the DSAC Governing Document) of DSAC at such time and prior to the Effective Time.

 

Privacy Requirements” means any and all (i) Company Privacy Policies, (ii) Contracts involving the Processing of Personal Data, (iii) Applicable Laws that apply to the security, privacy or Processing of Personal Data or other data, (iv) industry self-regulatory principles applicable to the protection or Processing of Personal Data to which the Company or any of its Subsidiaries purport to adhere and (v) binding guidance issued by any Governmental Authority that pertains to any of the Applicable Laws or principles outlined in the foregoing clauses (iii) or (iv).

 

Process”, “Processed” or “Processing” means, with respect to any data or Personal Data, the collection, recording, use, processing, storage, organization, modification, transfer, sale, retrieval, access, disclosure, deletion, dissemination or combination of such data Personal Data.

 

Prospectus” has the meaning given to such term in Section 7.04.

 

Proxy Statement” has the meaning given to such term in Section 9.04(a).

 

Reference Price” means $10.00 per share.

 

Registered Intellectual Property” means all registrations and applications for registration included in the Owned Intellectual Property as of the date of this Agreement.

 

Registration Statement” means the Registration Statement on Form S-4, or other appropriate form determined by the Parties, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by DSAC under the Securities Act with respect to shares of Newco Common Stock to be issued pursuant to this Agreement.

 

Related Party” has the meaning given to such term in Section 5.21.

 

Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into or through the indoor or outdoor environment.

 

Representatives” means, collectively, with respect to any Person, such Person’s officers, directors, Affiliates, employees, agents or advisors, including any investment banker, broker, attorney, accountant, consultant or other authorized representative of such Person.

 

Required Company Shareholders” means the Company Shareholders described on Section 1.01(d) of the Company Disclosure Schedule.

 

Sanctions” has the meaning given to such term in Section 5.23(d).

 

SEC” means the U.S. Securities and Exchange Commission.

 

SEC Documents” has the meaning given to such term in Section 6.08(a).

 

Section 16” has the meaning given to such term in Section 8.04.

 

Section 262” has the meaning given to such term in Section 4.06.

 

Securities Act” means the Securities Act of 1933.

 

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Security Incident” means any incident involving (i) information security breaches, intrusions or failures of the Company IT Systems or (ii) unauthorized access, use, theft, extraction, Processing, transfer, modification, loss, disclosure, corruption, destruction or encryption of Company PII or other data held, in whatever form, by or on behalf of the Company or its Subsidiaries, including where the unauthorized event results from the use of any malicious code (including, without limitation, viruses, Trojan horses, worms, malware, ransomware, bombs, backdoors, clocks, timers or similar harmful or hidden programs or other disabling device or malicious code, design or routine), social engineering, unauthorized access to physical premises, loss of devices, disclosure of passwords or otherwise.

 

Service Provider” means, as of any relevant time, any director, officer, employee or individual independent contractor of the Company or any of its Subsidiaries.

 

Significant Contract” has the meaning given to such term in Section 5.12(a).

 

Signing Press Release” has the meaning given to such term in Section 9.08.

 

Software” means any and all (i) computer, mobile, or device software, programs, systems, applications and code, including any software implementations of algorithms, models and methodologies and any source code, object code, firmware, middleware, APIs, development and design tools, applets, compilers and assemblers, (ii) databases and compilations, including any and all libraries, data and collections of data whether machine readable, on paper or otherwise, (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (iv) technology supporting, and the contents and audiovisual displays of, any internet site(s) and (v) documentation, other works of authorship and media, including user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded.

 

Sponsor” means Duddell Street Holdings Limited, a Cayman Islands limited liability company.

 

Sponsor Letter Agreement” has the meaning given to such term in the recitals hereto.

 

Subsidiary” means, with respect to a specified Person, a corporation or other entity (i) of which 50% or more of the voting power of the Equity Securities is owned, directly or indirectly, by such specified Person or (ii) with respect to which such specified Person controls the management.

 

Surviving Corporation” has the meaning given to such term in Section 3.01(b).

 

Surviving Provisions” has the meaning given to such term in Section 11.02.

 

Tax” means all federal, state, local, or foreign taxes, fees or levies imposed by a Governmental Authority (including income, profits, franchise, alternative minimum, gross receipts, sales, use, customs duties, value added, ad valorem, transfer, real property, personal property, stamp, capital stock, excise, premium, social security, payroll, occupation, employment, unemployment, severance, disability, registration, license, withholding and estimated tax), and any interest, penalty, or addition with respect thereto.

 

Tax Return” means any return, report, schedule, form, statement, declaration, or document (including any refund claim, information statement, or amendment) required to be filed with or submitted to a Taxing Authority in connection with the determination, assessment, collection or payment of any Tax.

 

Taxing Authority” means the Internal Revenue Service and any other Governmental Authority responsible for the administration, imposition, regulation, enforcement, assessment, determination or collection of any Tax.

 

Terminating Company Breach” has the meaning given to such term in Section 11.01(d).

 

Terminating DSAC Breach” has the meaning given to such term in Section 11.01(e).

 

Termination Date” has the meaning given to such term in Section 11.01(b).

 

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Top 10 Vendors” has the meaning given to such term in Section 5.22.

 

Trading Day” means any day on which shares of Newco Class A Common Stock are actually traded on the NASDAQ.

 

Transaction Proposals” has the meaning given to such term in Section 9.05(a).

 

Transfer Tax” means any direct or indirect transfer (including real estate transfer), sales, use, stamp, documentary, registration, conveyance, recording, or other similar Taxes or governmental fees (and any interest, penalty, or addition with respect thereto) payable as a result of the consummation of the transactions contemplated hereby.

 

Treasury Regulations” means the temporary and final regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

 

Triggering Event I” means the date on which the VWAP is greater than or equal to $12.50 (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to shares of Newco Class A Common Stock occurring after the Closing and upon or prior to the applicable Triggering Event) for any ten (10) Trading Days (which may or may not be consecutive) within any twenty (20) consecutive Trading Day period within the Earnout Period.

 

Triggering Event II” means the date on which the VWAP is greater than or equal to $15.00 (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to shares of Newco Class A Common Stock occurring after the Closing and upon or prior to the applicable Triggering Event) for any ten (10) Trading Days (which may or may not be consecutive) within any twenty (20) consecutive Trading Day period within the Earnout Period.

 

Triggering Event III” means the date on which the VWAP is greater than or equal to $20.00 (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to shares of Newco Class A Common Stock occurring after the Closing and upon or prior to the applicable Triggering Event) for any ten (10) Trading Days (which may or may not be consecutive) within any twenty (20) consecutive Trading Day period within the Earnout Period.

 

Triggering Event IV” means the date on which the VWAP is greater than or equal to $25.00 (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to shares of Newco Class A Common Stock occurring after the Closing and upon or prior to the applicable Triggering Event) for any ten (10) Trading Days (which may or may not be consecutive) within any twenty (20) consecutive Trading Day period within the Earnout Period.

 

Triggering Events” means Triggering Event I, Triggering Event II, Triggering Event III and Triggering Event IV, collectively.

 

Trust Account” means the account established by DSAC for the benefit of its public shareholders pursuant to the Trust Agreement.

 

Trust Agreement” means the Investment Management Trust Agreement, dated as of October 28, 2020, by and between DSAC and the Trustee.

 

Trustee” means Continental Stock Transfer & Trust Company.

 

Unvested Company Option” means a Company Option other than a Vested Company Option.

 

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Unvested Company RSU” means a Company RSU other than a Vested Company RSU.

 

US Plan” means any Company Benefit Plan that covers Service Providers located primarily within the United States.

 

Vested Company Option” means any outstanding Company Option that has vested (including after giving effect to any acceleration of any unvested Company Options in connection with the consummation of the transactions contemplated hereby).

 

Vested Company RSU” means any outstanding Company RSU that has vested (including after giving effect to any acceleration of any unvested Company RSUs in connection with the consummation of the transactions contemplated hereby).

 

Voting and Support Agreement” has the meaning given to such term in the recitals hereto.

 

VWAP” means the dollar volume-weighted average price of one share of Newco Class A Common Stock on the NASDAQ during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for such security on such date(s) on any of the foregoing bases, the VWAP of such security on such date(s) shall be the fair market value per share on such date(s) as reasonably determined by Newco.

 

WARN” has the meaning given to such term in Section 5.16(c).

 

Section 1.02.      Construction.

 

(a)           Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender and neuter form, (ii) words using the singular or plural form also include the plural or singular form, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” “herewith,” “hereunder” and derivative or similar words refer to this entire Agreement (including the Annexes and Appendices hereto) and not to any particular provision of this Agreement, (iv) the terms “Article,” “Section” and “Annex” refer to the specified Article, Section or Annex of or to this Agreement unless otherwise specified, (v) whenever any other word derived from a defined term shall be used in this Agreement, such derived word shall have the meaning correlative to such defined term (e.g., “controlled” or “controlling” shall have the meaning correlative to “control”), (vi) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation” whether or not they are in fact followed by such phrase or phrases or words of like import, (vii) the word “or” shall be disjunctive but not exclusive and (viii) references to anything having been “provided”, “made available” or “delivered” (or any other similar references) to any of the DSAC Parties means the relevant item has been posted in the electronic data site maintained by or on behalf of the Company in a location accessible to the DSAC Parties no later than 8:00 p.m. on the day immediately prior to the date hereof.

 

(b)           All Annexes or Schedules (including the Company Disclosure Schedule and the DSAC Disclosure Schedule) annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term(s) used in any Annex or Schedule (including the Company Disclosure Schedule and the DSAC Disclosure Schedule) annexed hereto or referred to herein but not otherwise defined therein shall have the meaning ascribed to such term(s) in this Agreement.

 

(c)           Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto; provided that, with respect to any agreement or other document identified in the Company Disclosure Schedule or the DSAC Disclosure Schedule, such amendment or other modification thereto is also identified in the Company Disclosure Schedule or the DSAC Disclosure Schedule, respectively.

 

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(d)           Unless the context of this Agreement otherwise requires, references to any statute, law or other Applicable Law shall include all regulations and rules promulgated thereunder and references to any statute, law or other Applicable Law shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.

 

(e)           References to any Person include references to such Person’s successors and assigns (provided, however, that nothing contained in this clause is intended to authorize any assignment or transfer not otherwise permitted by this Agreement), and in the case of any Governmental Authority, to any Person succeeding to its functions and capacities.

 

(f)           The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent. The Parties acknowledge that each Party and its counsel has reviewed and participated in the drafting of this Agreement and that no rule of strict construction, presumption or burden of proof favoring or disfavoring a Party shall be applied against any Party.

 

(g)           Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day. Except as otherwise expressly provided herein, (i) any reference in this Agreement to a date or time shall be deemed to be such date or time in New York, New York and (ii) references from or through any date mean, unless otherwise specified, from and including or through and including, such date, respectively.

 

(h)           The phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

 

(i)            The term “writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in visible form.

 

(j)            All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

 

(k)           All monetary figures used herein, including references to “$,” shall be in United States dollars unless otherwise specified.

 

Section 1.03.      Knowledge. As used herein, the phrase “to the knowledge” of any Person shall mean the actual knowledge, after reasonable inquiry, of (a) in the case of the Company, the individuals listed on Section 1.03 of the Company Disclosure Schedule and (b) in the case of DSAC, the individuals listed on Section 1.03 of the DSAC Disclosure Schedule.

 

Article 2
Domestication and Recapitalization

 

Section 2.01.      Domestication. Subject to receipt of the DSAC Shareholder Approval, prior to the Effective Time, DSAC shall cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, together with the Certificate of Incorporation of Newco in substantially the form attached as Annex A hereto, in each case, in accordance with the provisions thereof and Applicable Law, (b) completing and making and procuring all those filings required to be made with the Cayman Islands Registrar of Companies in connection with the Domestication, and (c) obtaining a certificate of de-registration from the Cayman Islands Registrar of Companies. The Domestication shall become effective at the time when the Certificate of Domestication has been duly filed with the Secretary of State of the State of Delaware or at such later time as may be agreed by DSAC and the Company in writing and specified in the Certificate of Domestication (the “Domestication Effective Time”).

 

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Section 2.02.      Bylaws of DSAC. DSAC shall take all actions necessary so that, at the Domestication Effective Time, the bylaws of Newco shall be substantially in the form attached as Annex B hereto (the “Newco Bylaws”).

 

Section 2.03.      Effects of the Domestication on the Share Capital of DSAC. At the Domestication Effective Time, by virtue of the Domestication and without any action on the part of the DSAC Parties or any holder of DSAC Ordinary Shares or DSAC Warrants:

 

(a)            each then issued and outstanding DSAC Class A Ordinary Share will convert automatically, on a one-for-one basis, into one share of Newco Class A Common Stock;

 

(b)           each then issued and outstanding DSAC Class B Ordinary Share will convert automatically, on a one-for-one basis, into one share of Newco Class A Common Stock;

 

(c)            each then issued and outstanding DSAC Common Warrant will convert automatically, on a one-for-one basis, into a warrant to acquire Newco Class A Common Stock (a “Newco Common Warrant”), in the same form and on the same terms and conditions (including the same “Warrant Price” and number of shares of common stock subject to such warrant) as the converted DSAC Common Warrant; and

 

(d)           each then issued and outstanding DSAC Sponsor Warrant will convert automatically, on a one-for-one basis, into a Newco Common Warrant, in the same form and on the same terms and conditions (including the same “Warrant Price” and number of shares of common stock subject to such warrant) as the converted DSAC Sponsor Warrant.

 

Section 2.04.      Recapitalization. Prior to the Closing, the Company shall (notwithstanding anything to the contrary herein, but subject to the receipt of the Company Shareholder Approval) take such actions as it reasonably deems necessary or appropriate to effect the Company Recapitalization (in each case, after reasonable advance written notice to DSAC of the actions to be taken), including (a) authorizing new classes or series of Equity Securities or additional Equity Securities of any existing class or series, (b) issuing new Equity Securities, (c) effecting any dividend, distribution, combination, split, subdivision, conversion, exchange, transfer, sale, cancelation, repurchase, redemption, reclassification or other change to, or transaction in, any Equity Security (each action described in this clause (c), an “Equity Adjustment”) of the Company or class or series thereof, (d) entering into, terminating, amending, restating, supplementing or otherwise modifying any Contracts relating to Equity Securities of the Company and (e) amending, restating, supplementing or otherwise modifying the Governing Documents of the Company; provided that (i) the Company shall not take any action pursuant to this Section 2.04 that would have the effect of increasing the aggregate consideration to be paid to holders of Equity Securities of the Company in, or in connection with, the Merger pursuant to Article IV, (ii) without the prior written consent of DSAC, the Company shall not declare, pay or make (or agree to pay or make) any dividend, distribution or other payment in a form other than Equity Securities of the Company or any of its Subsidiaries that will be Company Shares Outstanding, (iii) each share of Company Preferred Stock outstanding immediately prior to the Company Recapitalization shall be converted into, exchanged for or otherwise replaced with a number of shares of Company Class A Common Stock equal to the number of shares of Company Common Stock into which such shares of Company Preferred Stock would have been convertible immediately prior to the Company Recapitalization, (iv) the aggregate number of shares of Company Common Stock outstanding immediately prior to the Company Recapitalization shall be equal to the aggregate number of shares of Company Class A Common Stock and Company Class B Common Stock, collectively, issued in respect of such shares of Company Common Stock (or that such shares of Company Common Stock were converted into, exchanged for or otherwise replaced with) in connection with the Company Recapitalization, (v) no other Equity Securities of the Company outstanding immediately prior to the Company Recapitalization shall be converted into, exchanged for or otherwise replaced with shares of Company Class A Common Stock or Company Class B Common Stock, (vi) the holders of Company Shares immediately prior to the Company Recapitalization shall be the only holders of Company Shares immediately following the Company Recapitalization and (vii) the Company Recapitalization shall not alter, or have the effect of altering, the terms or conditions of the Per Share Merger Consideration.

 

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Article 3
Merger; Closing

 

Section 3.01.      Merger.

 

(a)           Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger Sub shall be merged with and into the Company in accordance with the DGCL, with the Company being the surviving corporation (the “Merger”). The Merger shall be evidenced by a Certificate of Merger filed by Merger Sub and the Company with the Secretary of State of the State of Delaware in substantially the form attached as Annex G hereto (the “Certificate of Merger”).

 

(b)           Upon consummation of the Merger at the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company, as the surviving corporation of the Merger (the “Surviving Corporation”), shall continue its corporate existence under the DGCL.

 

Section 3.02.      Effects of the Merger. From and after the Effective Time, the effects of the Merger shall be as provided in this Agreement and the applicable provisions of the DGCL and the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of Merger Sub and the Company, all as provided under the DGCL.

 

Section 3.03.      Closing; Effective Time. Subject to the terms and conditions of this Agreement, the closing of the Merger (the “Closing”) shall take place at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017, commencing at 10:00 a.m. (New York time) on the date which is three Business Days after the date on which all conditions set forth in Article 10 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or such other time and place as DSAC and the Company may mutually agree. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.” Subject to the satisfaction or waiver of all of the conditions set forth in Article 10, the DSAC Parties and the Company shall cause the Certificate of Merger to be executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance with the DGCL on the Closing Date. The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later time as may be agreed by DSAC and the Company in writing and specified in the Certificate of Merger, but in any event at least one day after the Domestication Effective Time (the “Effective Time”).

 

Section 3.04.      Certificate of Incorporation and Bylaws of the Surviving Corporation. At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or any other Person, the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall become the certificate of incorporation of the Surviving Corporation and shall be the certificate of incorporation of the Surviving Corporation until thereafter amended as provided therein and under the DGCL, except that the name of the Company reflected therein shall be “FiscalNote Holdings, Inc.” At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or any other Person, the bylaws of the Company, as in effect immediately prior to the Effective Time, shall become the bylaws of the Surviving Corporation and shall be the bylaws of the Surviving Corporation until thereafter amended as provided therein, in the certificate of incorporation of the Surviving Corporation and under the DGCL.

 

Section 3.05.      Directors and Officers of the Surviving Corporation. At the Effective Time, the directors of the Company as of immediately prior to the Effective Time shall be the directors of the Surviving Corporation (and all directors of Merger Sub immediately prior to the Effective Time shall be removed as of the Effective Time), each to hold office in accordance with the bylaws of the Surviving Corporation until the earlier of his or her resignation or removal or he or she otherwise ceases to be a director or until his or her respective successor is duly elected and qualified, as the case may be. The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation, each to hold office in accordance with the bylaws of the Surviving Corporation until the earlier of his or her resignation or removal or he or she otherwise ceases to be an officer or until his or her respective successor is duly elected and qualified, as the case may be.

 

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Article 4
Effects of the Merger on the Company Shares; Closing Deliveries

 

Section 4.01.      Closing Statement and Payment Spreadsheet. Promptly following delivery by (i) the Company of the Company Certificate pursuant to Section 4.07(a)(ii) and (ii) Newco of the Newco Certificate pursuant to Section 4.07(b)(ii) and, in any event, not less than five (5) Business Days prior to the Closing Date and based upon the Company Certificate and the Newco Certificate, the Company shall deliver to Newco a schedule (the “Payment Spreadsheet”) setting forth: (u) the Company’s good faith estimate of the Closing Company Cash and the Closing Company Indebtedness (including the Identified Company Indebtedness (broken out by obligee and payment amount)), and the resulting calculation of the Company Value; (w) the portion of the Aggregate Consideration payable to each holder of Company Shares Outstanding with respect to such holder’s Company Shares Outstanding (including the allocation of shares of Newco Common Stock), (x) the allocation of Newco Warrants pursuant to Section 4.03(a) among holders of outstanding and unexercised Company Warrants, (y) the allocation of Converted Notes pursuant to Section 4.03(c) among holders of outstanding and unexercised Company Convertible Notes and (z) the allocation of Converted Options and Converted RSUs pursuant to Section 4.03(b) and 4.04(b), respectively, among holders of unvested Company Equity Securities, with the Payment Spreadsheet required to satisfy the following criteria: (i) for each Company Shareholder, the product of the number of shares of Newco Common Stock allocable to such Company Shareholder multiplied by the Reference Price shall equal the product of the Per Share Equity Value multiplied by the number of issued and outstanding Company Shares owned by such Company Shareholder immediately before the Effective Time; and (ii) the shares of Newco Common Stock allocable to each of the holders of Company Shares Outstanding with respect to such holder’s Company Shares Outstanding, including the shares of Newco Common Stock issuable pursuant to Section 4.03(a) and Section 4.04(a), shall equal the Aggregate Consideration. As promptly as practicable following the Company’s delivery of the Payment Spreadsheet, the DSAC Parties and their Representatives shall have a reasonable opportunity to review and discuss with the Company and its Representatives the Payment Spreadsheet and documentation provided in connection with the delivery of the Payment Spreadsheet and the Parties shall work together in good faith to finalize the Payment Spreadsheet. The calculation of Company Value, allocation of the Aggregate Consideration and the information with respect to the allocation of Converted Options and Converted RSUs and payment of Identified Company Indebtedness at Closing set forth in the Payment Spreadsheet (as finalized in accordance with the immediately foregoing sentence) shall, to the fullest extent permitted by Applicable Law, be final and binding on all parties and shall be used by Newco and the Merger Sub for purposes of issuing the Aggregate Consideration to the Company Shareholders pursuant to this Article 4, absent manifest error. In issuing the Aggregate Consideration and converting the Unvested Company Options into the Converted Options and converting the Unvested Company RSUs into the Converted RSUs pursuant to this Article 4, Newco and the Merger Sub shall, to the fullest extent permitted by Applicable Law, be entitled to rely fully on the information set forth in the Payment Spreadsheet, absent manifest error.

 

Section 4.02.      Conversion of Company Shares. The solicitation by the Company of the Company Shareholder Approval shall include the solicitation of the affirmative vote or written consent to the voluntary conversion of the Company Preferred Stock into shares of Company Class A Common Stock from such holders of Company Preferred Stock as is necessary for the Company Preferred Stock to be automatically converted into shares of Company Class A Common Stock effective as of immediately prior to the Effective Time. At the Effective Time (and, for the avoidance of doubt, following the consummation of the Domestication), by virtue of the Merger and without any action on the part of the DSAC Parties, the Company, any Company Shareholder or any other Person, and subject to Section 4.06 with respect to Appraisal Shares, each Company Share that is issued and outstanding immediately prior to the Effective Time shall automatically be converted into and become the right to receive (A) the applicable Per Share Merger Consideration, in accordance with the Payment Spreadsheet and (B) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share to which any holder of Company Shares would otherwise be entitled rounded down to the nearest whole share) in accordance with Section 4.11, in each case without interest. As of the Effective Time, all such Company Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of Company Shares shall thereafter cease to have any rights with respect thereto, except the right to receive the consideration set forth in this Section 4.02.

 

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Section 4.03.     Treatment of Company Options, Company Warrants and Company Convertible Notes.

 

(a)           At the Effective Time, all of the Company Warrants outstanding and unexercised immediately prior to the Effective Time will, automatically and without any action on the part of any Company Warrantholder, or beneficiary thereof, be deemed exercised and converted into the right to receive (such right, a “Newco Warrant”) (I) that number of shares of Newco Class A Common Stock (with fractional shares of a Company Warrantholder aggregated and rounded down to the nearest whole share) determined by finding the quotient of (i) (A) the number of shares of Company Class A Common Stock underlying the vested portion of the Company Warrant, multiplied by (B) (x) the Per Share Equity Value less (y) the per share exercise price of such Company Warrant, minus (C) the applicable withholding taxes relating to the deemed exercise of such Company Warrant (to the extent the number calculated under this sub-clause (i) is a positive number), divided by (ii) the Reference Price and (II) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share to which any holder of Company Shares would otherwise be entitled rounded down to the nearest whole share) in accordance with Section 4.11, in each case without interest. As of the Effective Time, all Company Warrants shall no longer be outstanding and each Company Warrantholder shall cease to have any rights with respect to such Company Warrants, except as set forth in this Section 4.03(a).

 

(b)           At the Effective Time, all of the Company Options outstanding and unexercised immediately prior to the Effective Time, automatically and without any action on the part of any Company Optionholder or beneficiary thereof, will be assumed by DSAC, and each such Company Option, in accordance with the Payment Spreadsheet, shall be converted into a stock option (each, a “Converted Option”) to purchase shares of Newco Class A Common Stock. Each such Converted Option as so assumed and converted shall continue to have and be subject to substantially the same terms and conditions as were applicable to such Company Option immediately before the Effective Time (including vesting (if applicable), expiration date and exercise provisions), except that, as of the Effective Time, each such Converted Option as so assumed and converted shall be exercisable for (I) that number of shares of Newco Class A Common Stock determined by multiplying the number of Company Shares subject to such Company Option immediately prior to the Effective Time by the Exchange Ratio, which product shall be rounded down to the nearest whole number of shares at a per share exercise price determined by dividing the per share exercise price of such Company Option immediately prior to the Effective Time by the Exchange Ratio, which quotient shall be rounded up to the nearest whole cent and (II) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share rounded down to the nearest whole share) in accordance with Section 4.11(e); provided, that the exercise price and the number of shares of Newco Class A Common Stock purchasable under each Converted Option shall be determined in a manner consistent with the requirements of Section 409A of the Code and the applicable regulations promulgated thereunder; provided, further, that in the case of any Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of Newco Class A Common Stock purchasable under such Converted Option shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code. As of the Effective Time, all Company Options shall no longer be outstanding and each holder of Converted Options shall cease to have any rights with respect to such Company Options, except as set forth in this Section 4.03(b).

 

(c)           At the Effective Time, all of the Company Convertible Notes outstanding and unexercised immediately prior to the Effective Time will, automatically and without any action on the part of any Company Noteholder or beneficiary thereof, will be assumed by DSAC, and each such Company Convertible Note, in accordance with the Payment Spreadsheet, shall be converted into a convertible note (each, a “Converted Note”) issued by Newco, with a right of conversion into shares of Newco Class A Common Stock. As of the Effective Time, all Company Convertible Notes shall no longer be outstanding and each Company Noteholder shall cease to have any rights with respect to such Company Convertible Notes, except as set forth in this Section 4.03(c).

 

(d)           Prior to the Effective Time, the Company shall deliver to each Company Optionholder and Company Warrantholder a notice setting forth the effect of the Merger on such Company Optionholder’s Company Options or such Company Warrantholder’s Company Warrants, as applicable, and describing the treatment of such Company Options or Company Warrants in accordance with this Section 4.03.

 

Section 4.04.      Treatment of Company RSUs.

 

(a)            At the Effective Time, all of the Vested Company RSUs outstanding immediately prior to the Effective Time will, automatically and without any action on the part of any Company RSU Holder, or beneficiary thereof, be deemed settled and converted into the right to receive (I) that number of shares of Newco Class A Common Stock (with fractional shares of a Company RSU Holder aggregated and rounded down to the nearest whole share) determined by finding the quotient of (i) (A) the number of shares of Company Class A Common Stock underlying such Vested Company RSU, multiplied by (B) the Per Share Equity Value, minus (C) the applicable withholding taxes relating to the deemed settlement of such Vested Company RSU (to the extent the number calculated under this sub-clause (i) is a positive number), divided by (ii) the Reference Price and (II) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share to which any holder of Company Shares would otherwise be entitled rounded down to the nearest whole share) in accordance with Section 4.11, in each case without interest. As of the Effective Time, all Company RSUs shall no longer be outstanding and each holder of Company RSUs shall cease to have any rights with respect to such Company RSUs, except as set forth in this Section 4.04(a).

 

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(b)           At the Effective Time, all of the Unvested Company RSUs outstanding immediately prior to the Effective Time, automatically and without any action on the part of any Company RSU Holder or beneficiary thereof, will be assumed by DSAC, and each such Unvested Company RSU shall be converted into a restricted stock unit (each, a “Converted RSU”) of shares of Newco Class A Common Stock. Each such Converted RSU as so assumed and converted shall continue to have and be subject to substantially the same terms and conditions as were applicable to such Company RSU immediately before the Effective Time (including vesting (if applicable) and payment provisions), except that, as of the Effective Time, each such Converted RSU as so assumed and converted shall be settled for (i) that number of shares of Newco Class A Common Stock determined by multiplying the number of Company Shares subject to such Company RSU immediately prior to the Effective Time by the Exchange Ratio, which product shall be rounded down to the nearest whole number of shares and (ii) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share rounded down to the nearest whole share). As of the Effective Time, all Unvested Company RSUs shall no longer be outstanding and each holder of Converted RSUs shall cease to have any rights with respect to such Unvested Company RSUs, except as set forth in this Section 4.04(b).

 

(c)           Prior to the Effective Time, the Company shall deliver to each Company RSU Holder a notice setting forth the effect of the Merger on such Company RSU Holder’s Company RSU and describing the treatment of such Company RSUs in accordance with this Section 4.04.

 

(d)           Prior to the Effective Time, the Company shall have taken (or caused to be taken) all such actions as are reasonably necessary or appropriate to effect the treatment of Company Options and Company RSUs pursuant to Section 4.03 and Section 4.04 as of the Effective Time in accordance with Applicable Law and the terms of the Company Equity Plan and any Contracts evidencing Company Options or Company RSUs.

 

Section 4.05.      Merger Sub Shares. At the Effective Time, by virtue of the Merger and without any action on the part of the DSAC Parties, the Company or any other Person, each share of common stock of Merger Sub outstanding immediately prior to the Effective Time, in accordance with the finalized Payment Spreadsheet, shall be converted into and become one share of common stock, par value $0.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.

 

Section 4.06.      Appraisal Shares.

 

(a)           Notwithstanding anything in this Agreement to the contrary, any Company Shares that are outstanding immediately prior to the Effective Time and that are held by any Person who is entitled to demand and has properly demanded appraisal of such shares in connection with the Merger pursuant to, and who complies in all respects with, Section 262 of the DGCL (“Section 262” and such shares, “Appraisal Shares”) shall not be converted into the right to receive the consideration contemplated to be payable in respect thereof by this Article 4, and instead, such Appraisal Shares shall automatically be cancelled and shall cease to exist and the holders of such Appraisal Shares shall cease to have any rights with respect thereto except such rights as may be granted to such holders pursuant to Section 262; provided that if any holder of Appraisal Shares shall, as of the Effective Time, fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under Section 262, then such Appraisal Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive, the consideration contemplated to be payable in respect thereof by this Article 4. From and after the Effective Time, Appraisal Shares shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and a holder of Appraisal Shares shall not be entitled to exercise any of the voting rights or other rights of a stockholder of the Surviving Corporation.

 

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(b)           The Company shall provide prompt notice to DSAC of any demand, or any notices of intent to make demand, for appraisal of any Company Shares, withdrawals of such demands and any other instruments served pursuant to Section 262, in each case, received by the Company. DSAC shall have the right and opportunity to participate in all negotiations and Actions with respect to any demand or threatened demand for appraisal of any Company Shares in connection with the Merger, including those that take place prior to the Effective Time, and any other Action brought against the Company (or any of its directors, officers or employees (in their capacities as such)) by a current or former Company Shareholder related to the transactions contemplated hereby, and the Company shall not settle any such Action without DSAC’s prior written consent.

 

(c)           Notwithstanding anything to the contrary herein, the Per Share Merger Consideration deposited with the Exchange Agent pursuant hereto in respect of any Appraisal Shares shall be returned to Newco (or one of its designated Affiliates) upon its written demand, which demand may be made by Newco at any time after the date that is 180 days after the Effective Time, and no Company Shareholder shall be entitled to such Per Share Merger Consideration; provided that the holders of the applicable Appraisal Shares have not previously withdrawn or lost appraisal rights under the DGCL.

 

Section 4.07.      Exchange Pool; Letter of Transmittal.

 

(a)            Immediately prior to or at the Effective Time, DSAC shall deposit, or cause to be deposited, with an exchange agent selected by the Company and reasonably acceptable to DSAC (the “Exchange Agent”) evidence in book-entry form of shares of Newco Common Stock representing the number of shares of Newco Common Stock sufficient to deliver the aggregate Per Share Merger Consideration (the “Exchange Pool”).

 

(b)           Within two Business Days following the initial filing of the Registration Statement, the Company or the Exchange Agent shall mail or otherwise deliver to each Holder (to the extent not previously so delivered) a Letter of Transmittal (in the Company’s discretion, the Company may, in connection with the delivery of such Letter of Transmittal or otherwise, solicit from some or all Holders such Holders’ signatures to the Amended and Restated Registration Rights Agreement and Lock-up Agreement), which shall specify, among other things, that delivery shall be effected, and risk of loss and title to the Company Shares shall pass, only upon delivery of a completed and duly executed Letter of Transmittal to the Exchange Agent but in no event prior to the Effective Time. No Holder shall be entitled to receive the Per Share Merger Consideration unless such Holder has delivered a completed and duly executed Letter of Transmittal to the Exchange Agent (which, for the avoidance of doubt, shall include written notice of the lock-up provisions set forth in the Newco Bylaws applicable to the Newco Common Stock comprising the Per Share Merger Consideration). Each Holder that has not delivered a completed and duly executed Letter of Transmittal to the Exchange Agent at or prior to the Effective Time, upon delivery of a completed and duly executed Letter of Transmittal to the Exchange Agent after the Effective Time, shall be entitled to receive from the Exchange Agent the Per Share Merger Consideration to which such Holder is entitled pursuant to Section 4.01. With respect to any Holder of Company Shares that delivers a completed and duly executed Letter of Transmittal to the Exchange Agent at or prior to the Effective Time, DSAC shall instruct the Exchange Agent to pay such Holder the Per Share Merger Consideration to which such Holder is entitled pursuant to Section 4.01 at or promptly after the Closing. From and after the Effective Time, all previous Holders of Company Shares shall cease to have any rights as Holders other than the right to receive the Per Share Merger Consideration to which such Holder is entitled pursuant to Section 4.01 upon the delivery of a completed and duly executed Letter of Transmittal to the Exchange Agent, without interest. From and after the Effective Time, there shall be no further registration of transfers of Company Shares on the transfer books of the Surviving Corporation.

 

(c)           Notwithstanding anything to the contrary contained herein, no fraction of a share of Newco Common Stock will be issued by virtue of this Agreement or the transactions contemplated hereby, and unless otherwise specifically provided in this Agreement, each Person who would otherwise be entitled to a fraction of a share of Newco Common Stock (after aggregating all shares of Newco Common Stock to which such Person otherwise would be entitled) shall instead have the number of shares of Newco Common Stock issued to such Person rounded up to the nearest whole share of Newco Common Stock.

 

Section 4.08.      Closing Deliverables.

 

(a)           At or prior to the Closing, the Company shall deliver or cause to be delivered:

 

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(i)             the Amended and Restated Registration Rights Agreement, duly executed by the respective Holders party thereto;

 

(ii)            a certificate signed by an authorized officer of the Company, dated the Closing Date, certifying that the conditions specified in Section 10.02(a), Section 10.02(b) and Section 10.02(c) have been fulfilled (the “Company Certificate”);

 

(iii)           a certification satisfying the requirements of Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), that the Company is not, nor has it been within the period described in Section 897(c)(1)(A)(ii) of the Code, a “United States real property holding corporation” as defined in Section 897(c)(2) of the Code and an accompanying notice to the Internal Revenue Service satisfying the requirements of Treasury Regulations Section 1.897-2(h)(2) (collectively, the “FIRPTA Documentation”); provided that if the Company fails to deliver the FIRPTA Documentation, the DSAC Parties shall have the option, at their sole discretion, to waive the requirement to deliver the FIRPTA Documentation, in which case, the transactions shall nonetheless be able to close and Newco shall be entitled to withhold from any consideration paid pursuant to this Agreement the amount required to be withheld under Section 1445 of the Code as determined in the DSAC Parties’ reasonable discretion ; and

 

(iv)          payoff letters associated with the Identified Company Indebtedness in form and substance reasonably acceptable to DSAC.

 

(b)           At or prior to the Closing, Newco shall deliver or cause to be delivered:

 

(i)             the Amended and Restated Registration Rights Agreement, duly executed by Sponsor, the Backstop Parties and Newco;

 

(ii)            a certificate signed by an officer of Newco, dated the Closing Date, certifying that the conditions specified in Section 10.03(a), Section 10.03(b), Section 10.03(c) and Section 10.03(e) have been fulfilled (the “Newco Certificate”); and

 

(iii)           resignations, effective as of the Effective Time, from each officer and director of each DSAC Party, except for the Sponsor Designees if the CFIUS Approval has been obtained prior to Closing.

 

(c)           At or prior to the Closing, DSAC shall pay or cause to be paid to the applicable obligees thereof as set forth on the Payment Spreadsheet, on behalf of the Company and for its account, the amount of all Identified Company Indebtedness, as set forth in the payoff letters delivered pursuant to Section 4.08(a)(iv).

 

Section 4.09.      Exchange Agent. Promptly following the earlier of (i) the date on which the entire Exchange Pool has been disbursed and (ii) the date which is 12 months after the Effective Time, Newco shall instruct the Exchange Agent to deliver to Newco any remaining portion of the Exchange Pool, Letters of Transmittal and other documents in its possession relating to the transactions contemplated hereby, and the Exchange Agent’s duties shall terminate. Thereafter, each Holder may look only to Newco (subject to applicable abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for satisfaction of such Holder’s claim for the Per Share Merger Consideration that such Holder may have the right to receive pursuant to this Article 4 without any interest thereon.

 

Section 4.10.      No Liability; Withholding.

 

(a)           None of DSAC, Newco, the Surviving Corporation or the Exchange Agent shall be liable to any Person for any portion of the Per Share Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Notwithstanding any other provision of this Agreement, any portion of the Per Share Merger Consideration that remains undistributed to the Holders as of immediately prior to the date on which the Per Share Merger Consideration would otherwise escheat to or become the property of any Governmental Authority shall, to the extent permitted by Applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.

 

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(b)           Each of DSAC, Newco, the Surviving Corporation and the Exchange Agent (without duplication) shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement such Taxes as are required to be deducted and withheld with respect to the making of such payment under any Applicable Law; provided, however, that (a) except in respect of any (i) compensatory payment, (ii) withholding required as a result of a failure to provide the FIRPTA Documentation or the Tax forms or documentation required in the Letter of Transmittal or (iii) any withholding on imputed interest relating to the Earnout Shares or the payment of the Per Share Earnout Consideration, the withholding party shall use commercially reasonable efforts to (a) give the Company at least 5 business days’ prior notice of its intention to make such deduction or withholding, and (b) cooperate with the Company to obtain reduction of or relief from such deduction or withholding to the extent permitted by Applicable Law. Any amounts so deducted and withheld shall be paid over to the appropriate Governmental Authority in accordance with Applicable Law and, to the extent so paid over, shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

 

Section 4.11.      Earnout.

 

(a)           Following the Closing, as additional consideration for the Company Shares acquired in connection with the Merger, within five (5) Business Days after the occurrence of a Triggering Event, Newco shall issue or cause to be issued to each applicable Eligible Company Equityholder pursuant to Section 4.11(f), with respect to each outstanding Company Share and Vested Company Option, as applicable, owned by such Eligible Company Equityholder immediately prior to the Effective Time, the applicable Per Share Earnout Consideration in connection with such Triggering Event (which shall be equitably adjusted for stock splits, reverse stock splits, stock dividends, reorganizations, recapitalizations, reclassifications, combination, exchange of shares or other like change or transaction with respect to shares of Newco Class A Common Stock occurring after the Closing and upon or prior to the applicable Triggering Event), upon the terms and subject to the conditions set forth in this Agreement. For the avoidance of doubt, the Eligible Company Equityholders (excluding Eligible Company Equityholders in their capacity as holders of Unvested Company Options or Unvested Company RSUs solely to the extent they are eligible to receive Earnout RSU Shares pursuant to Section 4.11(e)) with respect to each Triggering Event shall be entitled to receive Earnout Shares upon the occurrence of such Triggering Event; provided, however, that each Triggering Event shall only occur once, if at all. Holders of Vested Company Options that are unexercised, issued and outstanding immediately before the Effective Time, holders of Unvested Company Options that hold related Converted Options that are vested as of such Triggering Event and holders of Unvested Company RSUs that hold related Converted RSUs that are vested as of such Triggering Event shall in each case receive the applicable Per Share Earnout Consideration in accordance with this paragraph and Section 4.11(f) and shall not receive Earnout RSUs pursuant to Section 4.11(e).

 

(b)           At all times during the Earnout Period, Newco shall keep available for issuance a sufficient number of shares of unissued shares of Newco Class A Common Stock to permit Newco to satisfy in full its issuance obligations set forth in this Section 4.11 and shall take all actions reasonably required (including by convening any shareholder meeting and soliciting any required consents or approvals from shareholders) to increase the authorized number of shares of Newco Class A Common Stock if at any time there shall be insufficient unissued shares of Newco Class A Common Stock to permit such reservation. In no event will any right to receive Earnout Shares or Earnout RSU Shares be represented by any negotiable certificates of any kind, and in no event will any holder of a contingent right to receive Earnout Shares or Earnout RSU Shares take any steps that would render such rights readily marketable.

 

(c)            Newco shall take such actions as are reasonably requested by the Eligible Company Equityholders to evidence the issuances pursuant to this Section 4.11, including through the provision of an updated register of members showing such issuances (as certified by a director or officer of Newco responsible for maintaining such register of members or the applicable registrar or transfer agent of Newco).

 

(d)           During the Earnout Period, Newco shall use reasonable best efforts for Newco to remain listed as a public company on, and for the shares of Newco Class A Common Stock (including, when issued, the Earnout Shares) to be tradable over the national securities exchange (as defined under Section 6 of the Exchange Act) on which the shares of Newco Class A Common Stock are then listed.

 

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(e)           Notwithstanding anything to the contrary contained herein, in lieu of receiving Earnout Shares, holders of Unvested Company Options that are unexercised, issued and outstanding and holders of Unvested Company RSUs outstanding, in each case as of immediately prior to the Effective Time shall be issued Earnout RSUs upon the occurrence of a Trigging Event in accordance with this Section 4.11(e) to the extent the Converted Option related to such Unvested Company Option or the Converted RSU related to such Unvested Company RSU is outstanding and unvested as of the occurrence of a Triggering Event. If the Converted Option or Converted RSU related to such Unvested Company Option or Unvested Company RSU, as applicable, was forfeited after the Effective Time but prior to such Triggering Event, no Earnout RSUs will be issued for such Unvested Company Option or Unvested Company RSU, as applicable. The number of Earnout RSUs issued with respect to each Unvested Company Option shall be equal to (i) Per Share Earnout Consideration multiplied by (ii) the aggregate number of Company Shares underlying the applicable Unvested Company Option (assuming payment in cash of the exercise price of such Unvested Company Option) multiplied by (iii) the percentage of the shares of Newco Class A Common Stock subject to the related Converted Option that are unvested as of the Triggering Event. The number of Earnout RSUs issued with respect to each Unvested Company RSU shall be equal to the (i) Per Share Earnout Consideration multiplied by (ii) the aggregate number of Company Shares underlying the applicable Unvested Company RSU multiplied by (iii) the percentage of the shares of Newco Class A Common Stock subject to the related Converted RSU that are unvested as of the Triggering Event. Each Earnout RSU shall be subject to forfeiture if the underlying vesting conditions of the applicable Converted Option associated with the Unvested Company Option or Converted RSU associated with the Unvested Company RSU are not attained, and such forfeiture restrictions shall lapse with respect to a pro rata portion of the Earnout RSUs held by each holder of Earnout RSUs upon the satisfaction of such underlying vesting conditions of the applicable Converted Option associated with the Unvested Company Option or Converted RSU associated with the Unvested Company RSU and the relevant Earnout RSU Shares shall be issued to such holder. Earnout RSUs that have been forfeited shall be reallocated pro rata to the other holders of Converted Options and Converted RSUs then outstanding with holders of vested Converted Options and Converted RSUs receiving Earnout RSU Shares and holders of unvested Converted Options and Converted RSUs receiving Earnout RSUs that vest pro-rata in accordance with the remaining vesting schedule of the underlying unvested Converted Option or Converted RSU.. Each Earnout RSU shall be subject to adjustment in accordance with Section 4.11(a) as if such Earnout RSU were an Earnout Share, and shall not be entitled to dividends paid with respect to the shares of Newco Class A Common Stock during the forfeiture period.

 

(f)            In any issuance of shares of Newco Class A Common Stock to Eligible Company Equityholders pursuant to Section 4.11(a) or 4.11(e), each Eligible Company Equityholder shall receive a number of Earnout Shares or Earnout RSU Shares, as applicable, equal to the applicable Per Share Earnout Consideration multiplied by the sum of the number of Company Shares Outstanding and the number of shares of Company Common Stock issued or exercisable upon the exercise of all Company Options and settlement of Unvested Company RSUs, as applicable, in each case held by such Eligible Company Equityholder immediately before the Effective Time, subject to further adjustment and reallocation, to the extent applicable, as a result of forfeiture of any Earnout RSUs as provided in Section 4.11(e).

 

(g)           Any Earnout Shares received by an Eligible Company Equityholder pursuant to Section 4.11(a) shall be treated as additional shares of Newco Class A Common Stock received in the Merger for all applicable U.S. federal, state and local Tax purposes, except as otherwise required by Applicable Law pursuant to a “final determination” within the meaning of Section 1313(a) of the Code (or any similar provision of applicable U.S. state or local Applicable Law).

 

(h)           The Parties intend that none of the rights to receive the Earnout Shares and any interest therein shall be deemed to be a “security” for purposes of any securities law of any jurisdiction. The right to receive the Earnout Shares are deemed contractual rights in connection with the Merger and the parties do not view the right to receive the Earnout Shares as an investment by the holders thereof. The right to receive the Earnout Shares will not be represented by any physical certificate or similar instrument. The right to receive the Earnout Shares does not represent an equity or ownership interest in any entity. No interest in the right to receive the Earnout Shares may be sold, transferred assigned, pledged, hypothecated, encumbered or otherwise disposed of, except by operation of law, and any attempt to do so shall be null and void. For the avoidance of doubt, (i) once issued, the Earnout Shares shall be considered a “security” for purposes of any securities law of any jurisdiction and the restrictions set forth in the foregoing sentence shall not apply to such issued Earnout Shares, and (ii) no Earnout Shares shall be included in the calculation of the aggregate number of shares of Newco Common Stock outstanding at or immediately after the Closing for purposes of this Agreement.

 

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Article 5
Representations and Warranties of the Company

 

Except as set forth in the Company Disclosure Schedule (subject to Section 12.14), the Company represents and warrants to the DSAC Parties as follows:

 

Section 5.01.      Corporate Existence and Power.

 

(a)           The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has all requisite corporate or similar organizational power and authority to own or lease its properties and to conduct its business as it is now being conducted.

 

(b)           A true and complete copy of the certificate of incorporation of the Company, certified by the Secretary of State of the State of Delaware, and a true and correct copy of the bylaws of the Company have, in each case, been made available by the Company to DSAC and each is in full force and effect and the Company is not in violation of any of the provisions thereof.

 

(c)           The Company is duly licensed or qualified and, where applicable, in good standing as a foreign corporation in each jurisdiction in which the ownership or lease of its property or the character of its activities is such as to require it to be so licensed, qualified or in good standing, as applicable, except where the failure to be so licensed or qualified would not reasonably be expected to have a Company Material Adverse Effect.

 

Section 5.02.      Corporate Authorization.

 

(a)           The Company has all requisite corporate or similar organizational power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party, to perform its obligations hereunder and thereunder, and (subject to the approvals described in Section 5.03) to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party, and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized and approved by the Company Board and, except for the Company Shareholder Approval, no other corporate or similar organizational action on the part of the Company or any of its Subsidiaries or any holders of any Equity Securities of the Company or any of its Subsidiaries is necessary to authorize the execution and delivery by the Company of this Agreement or the Ancillary Agreements to which the Company is (or is specified to be) a party, the performance by the Company of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming this Agreement constitutes a legal, valid and binding obligation of the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. Each Ancillary Agreement to which the Company is (or is specified to be) a party, when executed and delivered by the Company, will be duly and validly executed and delivered by the Company, and, assuming such Ancillary Agreement constitutes a legal, valid and binding obligation of the other parties thereto, will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

 

(b)           The Company Board has unanimously (i) approved this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) determined that this Agreement, the Merger and the transactions contemplated by this Agreement are advisable and in the best interests of the Company and the Holders, (iii) directed that the adoption of this Agreement be submitted for approval by the Company Shareholders and (iv) resolved to recommend that the Company Shareholders approve this Agreement, the Merger and the transactions contemplated by this Agreement.

 

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Section 5.03.      Governmental Authorizations; Consents. No consent, approval or authorization of, or designation, declaration to or filing with, notice to, or any other action by or in respect of, any Governmental Authority or other Person is required on the part of the Company with respect to the Company’s execution, delivery and performance of this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party or the consummation of the transactions contemplated hereby and thereby, except for (a) applicable requirements of the HSR Act or foreign Antitrust Laws, (b) the filing of the Certificate of Merger in accordance with the DGCL and (c) any consents, approvals, authorizations, designations, declarations, filings, notices or actions, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.

 

Section 5.04.      Noncontravention. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which the Company is (or is specified to be) a party by the Company and the consummation of the transactions contemplated hereby and thereby do not and will not (a) contravene, conflict with, or violate any provision of, or result in the breach of, any Applicable Law, (b) contravene, conflict with, or violate any provision of, or result in the breach of, the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries, (c) assuming the receipt of the consents, approvals, authorizations and other requirements set forth in Section 5.03, conflict with, violate or result in a breach of any term, condition or provision of any Significant Contract, or terminate or result in a default under, or require any consent, notice or other action by any Person under (with or without notice, or lapse of time, or both) or the loss of any right under, or create any right of termination, acceleration or cancellation of any Significant Contract, or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or any of its Subsidiaries, or constitute an event which, with or without notice or lapse of time or both, would result in any such violation, breach, termination or creation of a Lien or result in a violation or revocation of any required license, Permit or approval from any Governmental Authority or other Person, except, in the case of clauses (a), (c) and (d) above, to the extent that the occurrence of any of the foregoing would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.

 

Section 5.05.      Subsidiaries.

 

(a)           The Subsidiaries of the Company are set forth on Section 5.05 of Company Disclosure Schedule. The Subsidiaries have been duly incorporated, formed or organized and are validly existing and in good standing, where applicable, under the Applicable Laws of their respective jurisdiction of incorporation, formation or organization and have the power and authority to own or lease their respective properties and to conduct their respective businesses as they are now being conducted. Each Subsidiary of the Company is duly licensed or qualified and in good standing as a foreign corporation (or other entity, if applicable) in each jurisdiction in which its ownership or lease of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not reasonably be expected to be have a Company Material Adverse Effect.

 

(b)           True and complete copies of the organizational documents of the Subsidiaries of the Company have been made available to DSAC, and are in full force and effect and such Subsidiaries are not in violation of any of the provisions thereof.

 

(c)           The outstanding Equity Securities of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights. The Company owns of record and beneficially all the issued and outstanding Equity Securities of each Subsidiary free and clear of any Liens other than Permitted Liens.

 

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Section 5.06.      Capitalization.

 

(a)           All of the issued and outstanding Company Shares have been duly authorized and validly issued in accordance with all Applicable Laws, including all applicable federal securities laws, and the organizational documents of the Company, and are fully paid and nonassessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, and are free and clear of all Liens and other restrictions (including any restriction on the right to vote, sell or otherwise dispose of such Company Shares), other than generally applicable transfer restrictions imposed by applicable securities laws. Section 5.06(a) of the Company Disclosure Schedule sets forth a true, correct and complete list, as of November 5, 2021, of the issued and outstanding Company Shares, and the holders thereof. Other than the Company Shares shown on Section 5.06(a) of the Company Disclosure Schedule, Company Shares issued upon the exercise of Company Options after November 5, 2021, there are no other issued or outstanding Equity Securities of the Company.

 

(b)           Section 5.06(b) of the Company Disclosure Schedule contains a true, correct and complete list, as of November 5, 2021, of all of the Company Options, Company Warrants, Company Convertible Notes and Company RSUs that are authorized, issued or outstanding and the holders of such Company Options, Company Warrants, Company Convertible Notes and Company RSUs, the applicable exercise price (to the extent applicable), vesting schedule, grant date and expiration date. Other than the Company Options and as described in Section 5.06(a), there are no Equity Securities of the Company or any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Equity Securities of the Company or any Subsidiary of the Company. There are no outstanding bonds, debentures, notes or other Indebtedness of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the equityholders of the Company or any Subsidiary of the Company may vote. Each Company Option was granted with a per share exercise price that was no less than the fair market value of a Company Share on the date of grant, in reliance on a report prepared by Company’s external valuation consultant pursuant to U.S. Code § 409A, in accordance with the terms of the applicable Company Equity Plan and in accordance with, or pursuant to compliant reliance on an exemption from, applicable securities law. None of the Company or any of its Subsidiaries is a party to any equityholders agreement, voting agreement or registration rights agreement relating to the Equity Securities of the Company or any Subsidiary of the Company. There are no declared but unpaid dividends or other distributions with regard to any issued and outstanding Equity Securities of the Company or any Subsidiary of the Company.

 

Section 5.07.      Financial Statements.

 

(a)           The Company has made available to DSAC true and complete copies of (i) the audited consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2020 and December 31, 2019, and the audited consolidated statements of operations and comprehensive loss of the Company and its Subsidiaries for the twelve months ended December 31, 2020 and December 31, 2019 (the “Annual Financial Statements”), and (ii) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of June 30, 2021, and the unaudited consolidated statement of operations and comprehensive loss of the Company and its Subsidiaries for the six months ended June 30, 2021 (the “Interim Financial Statements” and, together with the Annual Financial Statements, the “Financial Statements”). The Financial Statements present and, when delivered pursuant to Section 9.04(c), the Audited Financial Statements will present fairly, in all material respects, the consolidated financial position, results of operations, and changes in members’ equity and cash flow of the Company and its Subsidiaries as of the dates and for the periods indicated in such Financial Statements or Audited Financial Statements, as applicable, in conformity with GAAP consistently applied throughout the period indicated (except, in the case of the Interim Financial Statements, for the absence of footnotes and other presentation items required by GAAP and for normal and recurring year-end adjustments that are not material).

 

(b)           The Audited Financial Statements, when issued, will have been audited in accordance with PCAOB auditing standards by a PCAOB-qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act.

 

(c)           To the knowledge of the Company, the systems of internal accounting controls maintained by the Company and its Subsidiaries are sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; and (iii) material information is communicated to management as appropriate.

 

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(d)           Neither the Company nor any of its Subsidiaries is a party to, or is subject to any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, on the other hand), including any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Act), in each case, where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Financial Statements.

 

(e)           Neither the Company nor any of its Subsidiaries has received from any employee of the Company or its Subsidiaries any written or, to the knowledge of the Company, oral complaint, allegation, assertion or claim with respect to unlawful or potentially unlawful activity regarding accounting, internal accounting controls, auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries, and the Company and its Subsidiaries have not independently identified or received any written notice from their independent accountants regarding any of the foregoing.

 

(f)            Section 5.07(f) sets forth (i) a schedule of all of the outstanding Indebtedness of the Company and its Subsidiaries as of the date hereof, whether or not contingent, and (ii) as of the date hereof, (A) the approximate percentage of the Company Convertible Notes and (B) the approximate percentage of aggregate amount owing pursuant to the Company Convertible Notes, in each case that are not required to convert at or before Closing pursuant to their respective terms or applicable amendment, supplement or acknowledgment (the "Potentially Continuing Convertible Notes").

 

Section 5.08.      Undisclosed Liabilities. There is no liability, debt or obligation of the Company or any of its Subsidiaries (x) required to be set forth on a balance sheet of the Company in accordance with GAAP or (y) that is, to the knowledge of the Company, material, in each case except for liabilities, debts and obligations (a) as (and to the extent) reflected or reserved for on the balance sheet of the Company included in the Interim Financial Statements, (b) that have arisen since December 31, 2020 in the Ordinary Course of Business (none of which results from, arises out of or was caused by any tortious conduct, breach of Contract, infringement or violation of Applicable Law) or (c) incurred in connection with the transactions contemplated by this Agreement. Other than the PPP Loans, neither the Company nor any of its Subsidiaries has applied for or received any loan under the Paycheck Protection Program under the CARES Act.

 

Section 5.09.      Absence of Changes.

 

(a)           Since December 31, 2020 through the date hereof, there has not been any Company Material Adverse Effect.

 

(b)           Since December 31, 2020, the Company and its Subsidiaries (i) have, in all material respects, conducted their business and operated their properties in the Ordinary Course of Business (ii) have not taken any action (or failed to take any action) that would violate Sections 7.01(e), (i), (k), (l), (n), (p) and (q) (to the extent related to clauses (e), (i), (k), (l), (n) and (p)) if such action had been taken (or failed to be taken) after the date of this Agreement.

 

Section 5.10.      Litigation and Proceedings. Since January 1, 2019, there have not been any, and there are currently no, pending or, to the knowledge of the Company, threatened, Actions against the Company or any of its Subsidiaries or any of their respective properties or assets, or, to the knowledge of the Company, any of their respective directors or employees, in their capacity as such except, in each case, (i) for routine claims for benefits in the Ordinary Course of Business with respect to Company Benefit Plans and (ii) as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Since January 1, 2019, neither the Company nor any of its Subsidiaries nor any property or asset of the Company or any such Subsidiary, has been subject to any Governmental Order.

 

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Section 5.11.      Compliance with Laws; Permits.

 

(a)           The Company and its Subsidiaries are, and since January 1, 2019 have been, in compliance with all Applicable Laws, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Since January 1, 2019, (i) none of the Company or any of its Subsidiaries has been subjected to, or received any notification from, any Governmental Authority of a material violation of any Applicable Law or any investigation by a Governmental Authority for actual or alleged material violation of any Applicable Law, (ii) to the knowledge of the Company, no claims have been filed against the Company or any of its Subsidiaries with any Governmental Authority alleging any material failure by the Company or any of its Subsidiaries to comply with any Applicable Law, and (iii) none of the Company nor any of its Subsidiaries has made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any material noncompliance with any Applicable Law.

 

(b)           The Company and each of its Subsidiaries has all Permits that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted and as proposed to be conducted (the “Company Permits”), except where the failure to have such Company Permits would not be material to the Company and its Subsidiaries, taken as a whole. As of the date hereof, (i) each Company Permit is in full force and effect in accordance with its terms, (ii) no outstanding written or, to the knowledge of the Company, oral notice of revocation, cancellation or termination of any Company Permit has been received by the Company or any of its Subsidiaries, (iii) there are no Actions pending or, to the knowledge of the Company, threatened that seek the revocation, suspension, withdrawal, adverse modification, cancellation or termination of any Company Permit, and (iv) each of the Company and each of its Subsidiaries is, and has been since January 1, 2019, in compliance with all material Company Permits applicable to the Company or such Subsidiary, in each case, except as would not be material to the Company and its Subsidiaries, taken as a whole. The consummation of the transactions contemplated by this Agreement will not cause the revocation, modification or cancellation of any Company Permits, except for any such revocation, modification or cancellation that would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.

 

Section 5.12.      Significant Contracts.

 

(a)           Section 5.12(a) of the Company Disclosure Schedule sets forth a complete and accurate list of all Contracts to which the Company or any of its Subsidiaries is a party or is bound by falling within the following categories and existing as of the date hereof (each Contract required to be listed on Section 5.12(a) of the Company Disclosure Schedule and, as of the Closing, any other Contract in existence that would have been required to be disclosed pursuant to Section 5.12(a) if in existence on the date hereof, a “Significant Contract”):

 

(i)             any Contract, the performance of which involves payments (A) by the Company or its Subsidiaries in the aggregate in excess of $250,000 during calendar year 2020 or that would reasonably be expected to be in excess of $250,000 during either calendar year 2021 or calendar year 2022 or (B) to the Company or its Subsidiaries in the aggregate in excess of $250,000 during calendar year 2020 or that would reasonably be expected to be in excess of $250,000 during either calendar year 2021 or calendar year 2022 (other than purchase or service orders accepted, confirmed or entered into in the Ordinary Course of Business);

 

(ii)            any Contract for the voting of Equity Securities of the Company or any of its Subsidiaries;

 

(iii)           any Contract with a Top 10 Vendor (other than purchase or service orders accepted, confirmed or entered into in the Ordinary Course of Business);

 

(iv)          each employment Contract with any employee of the Company or one of its Subsidiaries that provides for annual target compensation in excess of  $200,000;

 

(v)           each collective bargaining Contract (a “Labor Contract”);

 

(vi)          any Contract in respect of Leased Real Property;

 

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(vii)         (A) any material Contract under which the Company or any of its Subsidiaries has granted to a third party any right, license or covenant not to sue with respect to any Intellectual Property, other than non-exclusive licenses granted in the Ordinary Course of Business consistent with past practice, or (B) any Contract pursuant to which the Company or any of its Subsidiaries obtains any right, license or covenant not to sue from a third party with respect to any material Intellectual Property, other than non-exclusive licenses of commercial off-the-shelf Software that are available to the public generally, with annual license, maintenance, support and other fees of less than $150,000;

 

(viii)        any Contract that (A)(1) contains a covenant not to compete in any line of business or solicit persons for employment, (2) grants exclusive or preferential rights or “most favored nations” status to any person, or (3) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service in excess of  $500,000 in the aggregate during any calendar year, in each case that is applicable to the Company or any of its Subsidiaries or (B) prohibits the Company or any of its Subsidiaries from soliciting any customers or strategic partners; in any case other than non-disclosure agreements and confidentiality agreements entered into in the Ordinary Course of Business;

 

(ix)           any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) any Indebtedness (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among the Company or any of its Subsidiaries), (B) granted a Lien on its assets or group of assets, whether tangible or intangible, to secure any Indebtedness, (C) extended credit to any Person (other than pursuant to Contracts (i) involving immaterial advances made to an employee of the Company or any of its Subsidiaries or (ii) for goods and services, in each case in the Ordinary Course of Business) or (D) granted a material performance bond, letter of credit or any other similar instrument, in each case, in excess of $100,000;

 

(x)            any Contract with any Governmental Authority, the performance of which involves payments to the Company or its Subsidiaries in the aggregate in excess of $250,000 during calendar year 2020 or that would reasonably be expected to be in excess of $250,000 during either calendar year 2021 or calendar year 2022;

 

(xi)           each Contract with a Related Party (other than Company Benefit Plans or Contracts for compensation for services performed by a Related Party as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business);

 

(xii)          each Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) that contains financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the making of payments by the Surviving Corporation or any of its Subsidiaries after the Closing Date;

 

(xiii)         any Contract establishing any joint venture, strategic alliance, partnership or other material collaboration;

 

(xiv)         any Contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute under which the Company or any of its Subsidiaries has any ongoing obligations (either monetary or non-monetary); and

 

(xv)          any Contract which grants any Person a right of first refusal, right of first offer or similar right with respect to any properties, assets or businesses of the Company or any of its Subsidiaries.

 

(b)           True and correct copies of each Significant Contract as of the date hereof have been delivered to or made available to DSAC. Each Significant Contract is in full force and effect and represents the legal, valid and binding obligations of the Company, and to the knowledge of the Company the other parties thereto, and is enforceable against the Company, and to the knowledge of the Company against the other parties thereto, in accordance with its terms and conditions. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party to any such Significant Contract is in breach of or in default under such Significant Contract. Neither the Company nor any of its Subsidiaries has received any written claim or notice of any material breach of or default under any Significant Contract, and, to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in a material breach of or a default under any Significant Contract by the Company or any Subsidiary of the Company party thereto or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both). No party to any Significant Contract has exercised termination rights with respect thereto or has indicated in writing that it intends to terminate or materially modify its relationship with the Company or any of its Subsidiaries.

 

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Section 5.13.      Intellectual Property.

 

(a)            Section 5.13(a) of the Company Disclosure Schedule contains a complete and accurate list, as of the date hereof, of all Registered Intellectual Property, including as to each such item, as applicable, (i) the current owner or registrant, (ii) the jurisdiction where the application, registration or issuance is filed, (iii) the application, registration or issue number and (iv) the application, registration or issue date. Each item of Registered Intellectual Property in all material respects (A) has not been abandoned, cancelled or adjudged invalid or unenforceable in whole or in part, (B) has been maintained effective by all requisite filings, renewals and payments and (C) is subsisting and in full force and effect and, to the extent registered or issued, valid and enforceable.

 

(b)           The Company and its Subsidiaries (i) solely and exclusively own all right, title, and interest in and to the Owned Intellectual Property, (including all Registered Intellectual Property) and (ii) have a valid and enforceable right to use all Licensed Intellectual Property, in each case, free and clear of all Liens (other than Permitted Liens). There exists no material restrictions on the disclosure, use, license or transfer of the Owned Intellectual Property.

 

(c)           The Company and its Subsidiaries use commercially reasonable efforts in accordance with normal industry practice to maintain, enforce and protect the confidentiality of all Intellectual Property owned by the Company and its Subsidiaries the value of which to their business is contingent upon maintaining the confidentiality thereof, including maintaining policies requiring all employees, consultants and independent contractors to agree to maintain the confidentiality of such Intellectual Property. There has been no disclosure of any trade secrets or confidential information owned by the Company other than to employees, contractors, consultants, representatives and agents of the Company or any of its Subsidiaries under written confidentiality agreements.

 

(d)           The Company and its Subsidiaries own or have a valid right to use any and all Intellectual Property used or held for use in, or otherwise necessary for, the conduct of the business of the Company and its Subsidiaries as currently conducted. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, the execution and delivery of this Agreement by the Company and the consummation of the transactions contemplated hereby will not result in the loss, alteration, encumbrance, termination, or impairment of any Owned Intellectual Property or any Licensed Intellectual Property.

 

(e)           Neither the Company nor any of its Subsidiaries has, since January 1, 2020, infringed, misappropriated or otherwise violated, or is infringing, misappropriating or otherwise violating any third party’s Intellectual Property rights. No Action is pending, or has been threatened in writing against the Company or any of its Subsidiaries (i) alleging any infringement, misappropriation or violation of any third party’s Intellectual Property rights by the Company or any of its Subsidiaries or (ii) based upon, or challenging or seeking to deny or restrict, the rights of the Company or any of its Subsidiaries in any of the Owned Intellectual Property or Licensed Intellectual Property, in each instance that would reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. To the knowledge of the Company, no third party has infringed, misappropriated or otherwise violated any Owned Intellectual Property or Licensed Intellectual Property in any material respect.

 

(f)            No funding, facilities, personnel or resources of any Governmental Authority or any university, college, research institute or other educational institution was used in the development of any material Owned Intellectual Property, except for any such finding or use of facilities or personnel that has not resulted in such Governmental Authority or institution obtaining ownership or other exclusive rights to such Owned Intellectual Property.

 

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(g)           All current and former employees, independent contractors and consultants who contributed to the discovery, creation or development of any Owned Intellectual Property for or on behalf of the Company or any of its Subsidiaries have transferred all of their rights, title and interest in and to such Owned Intellectual Property to the Company or one of its Subsidiaries pursuant to binding written agreements containing self-executing present-tense assignment language and acknowledge the Company’s or its Subsidiaries’ ownership of all such Intellectual Property. No such employee, independent contractor or consultant has asserted any right, license, claim or interest whatsoever in or with respect to any such Owned Intellectual Property.

 

(h)           The use of Open Source Software by the Company and its Subsidiaries and in the operation of their businesses, including the use and distribution of products and services by or on behalf of the Company and its Subsidiaries, is in compliance with the terms and conditions of all applicable licenses for such Open Source Software, including notice and attribution obligations. None of the Software included in the Owned Intellectual Property contains any Software that is licensed under any terms or conditions that require, as a condition to the use, modification or distribution of such Open Source Software, that any such Software included in the Owned Intellectual Property be (i) made available, disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributable at no charge.

 

(i)            The Company and its Subsidiaries have not disclosed, delivered, licensed or otherwise made available (other than pursuant to written and binding confidentiality agreements), and do not have a duty or obligation (whether present, contingent, or otherwise) to disclose, deliver, license, or otherwise make available, any source code that embodies any Owned Intellectual Property to any Person other than employees, contractors, and consultants performing services for the benefit of the Company and its Subsidiaries under obligations of confidentiality.

 

(j)            None of the Software included in the Owned Intellectual Property or otherwise distributed by the Company or any of its Subsidiaries (i) contains any material defect that would prevent such Software from performing in accordance with its user specifications and would cause the Company or any of its Subsidiaries to have material liability to an end customer of such Software; (ii) to the knowledge of the Company, contains any viruses, worms, Trojan horses, bombs, backdoors, clocks, timers or similar harmful or hidden programs or other disabling device or malicious code, design or routine; or (iii) is subject to any agreement with any Person under which the Company or any of its Subsidiaries has deposited, or could be required to deposit, into escrow the source code of such Software and no source code of any Software included in the Owned Intellectual Property has been released to any Person, or is entitled to be released to any Person (on a contingent basis or otherwise), by any escrow agent, escrow service or similar third party. The consummation of the transactions contemplated by this Agreement will not trigger the release of any source code of any Software included in the Owned Intellectual Property nor any source code of any other Software distributed by the Company or any of its Subsidiaries.

 

(k)           The Company IT Systems operate and perform in a manner that, in all material respects, permits the Company and its Subsidiaries to conduct their business as currently conducted. To the extent the Company IT Systems are owned by or under the control of the Company or any of its Subsidiaries, the Company and its Subsidiaries have in place commercially reasonable measures, consistent with current industry standards, to protect the confidentiality, integrity and security of the Company IT Systems, and all information and transactions stored or contained therein or transmitted thereby, against any unauthorized use, access, interruption, modification or corruption, and such measures include commercially reasonable security protocol technologies, including the implementation of commercially reasonable (i) safeguards and security protocol technologies designed to protect against unauthorized access to, and unauthorized use, alteration, disclosure or distribution of Personal Data (“Information Security Program”), (ii) data backup, (iii) disaster avoidance and recovery procedures, (iv) business continuity procedures and (v) encryption and other security protocol technology. Except as set forth on Section 5.13(k) of the Company Disclosure Schedule, there has been no security breach or unauthorized access to the Company IT Systems owned by or under the control of the Company or any of its Subsidiaries, or any unauthorized access, use, disclosure, modification, corruption, or encryption of any data or information, or any Personal Data, stored by the Company or any of its Subsidiaries on any of the Company IT Systems.

 

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Section 5.14.          Data Privacy and Security.

 

(a)          Since January 1, 2019, the Company and its Subsidiaries have at all times materially complied, and are currently in material compliance, in all respects with all Privacy Requirements and all requirements contained in any Contract to which the Company or any of its Subsidiaries is bound, in each case, relating to (i) the privacy of the users of the products, services and websites of their business and/or (ii) the collection, use, storage, processing and disclosure of any Personal Data and other confidential data or information collected or stored by or on behalf of their business. No claims or Actions have been asserted or threatened against the Company or any of its Subsidiaries by any Person in relation to any actual or alleged Security Incident or otherwise for or arising as a result of any actual or alleged violation, breach of such Person’s privacy, personal or confidentiality rights under any applicable laws, rules, policies, procedures or Contracts, or other non-compliance with or of any Privacy Requirement in each instance.

 

(b)          The Company and its Subsidiaries are not, and since January 1, 2019 have not been, subject to a Governmental Order of, or since January 1, 2019 have received a notice from, and has not been required to notify, any Person or a Governmental Authority regarding actual or alleged non-compliance with or violation of any Privacy Requirement. The Company and its Subsidiaries have taken commercially reasonable steps to ensure the reliability of their employees, representatives, consultants, contractors and agents that have access to Company PII, to train such individuals on all applicable Privacy Requirements and to ensure that all such employees, representatives, consultants, contractors and agents with the right to access such Company PII are under written obligations of confidentiality with respect to such Company PII.

 

(c)          Each of the Company’s and its Subsidiaries’ current and former third-party data suppliers, vendors, and partners that Process or have access to any Company PII or other Personal Data on behalf of the Company or its Subsidiaries are in material compliance with the Privacy Requirements and there have been no unauthorized or illegal Processing, or other breach, violation or default (or event that, with or without the giving of notice or lapse of time, would constitute a breach, violation or default) by any such supplier, vendor or other partner of any Privacy Requirements.

 

(d)          The consummation of the transactions contemplated by this Agreement will not breach any Privacy Requirements.

 

Section 5.15.          Company Benefit Plans.

 

(a)          Section 5.15(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of each material Company Benefit Plan. A “Company Benefit Plan” means any “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, and all other employee compensation and benefit contracts, plans, policies, programs, or arrangements, and each other change in control, transaction bonus, equity or equity- based compensation, severance, retention, employment, change-of-control, bonus, incentive, deferred compensation, retirement, pension, profit-sharing, vacation, disability, medical (including any self-insured arrangement), dental, vision, disability or sick leave benefits, post-retirement benefits (including compensation, pension, health, medical or insurance benefits), health, welfare, prescription, or other fringe or employee benefit plan, agreement, program, policy, or arrangement (other than offer letters for at-will employment without an obligation for severance), in each case whether written or unwritten (i) that is maintained, sponsored, administered, entered into or contributed to (or required to be contributed to) by the Company or any of its Subsidiaries for the current or future benefit of any current or former Service Provider or (ii) under which the Company or any of its Subsidiaries has or is reasonably expected to have any direct or indirect obligation or liability. Section 5.15(a) of the Company Disclosure Schedule separately which jurisdiction participants in the Company Benefit Plan primarily provide services in and whether it is an International Plan or a US Plan.

 

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(b)          With respect to each Company Benefit Plan, the Company has delivered or made available to DSAC copies of (and any amendments thereto), if applicable, (i) such Company Benefit Plan (or, if oral, a written summary thereof) and any trust or funding agreement related thereto, (ii) the most recent summary plan description (if applicable), (iii) the most recent annual report on Form 5500 and all attachments thereto filed with the Internal Revenue Service (if applicable) including all schedules thereto, financial statements and any related actuarial reports, (iv) all material, non-routine correspondence or other communications received within the last three (3) years from any Governmental Authority regarding such Company Benefit Plan, and (v) the most recent determination or opinion letter issued by the Internal Revenue Service and (vi) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in Applicable Laws and practices) to the documents required to be provided in clauses (i) through (v).

 

(c)          Except as would not be material to the Company and its Subsidiaries, taken as a whole, (i) each Company Benefit Plan has been established, maintained, and administered in compliance with its terms and all Applicable Laws, including ERISA, the Code, and the Patient Protection and Affordable Care Act (as amended), (ii) all contributions and other payments required by and due under the terms of each Company Benefit Plan have been timely made, and (iii) all forms, reports, or returns required to be filed with the Department of Labor, Internal Revenue Service, or any other Governmental Authority with respect to each Company Benefit Plan have been timely and properly filed.

 

(d)          Each Company Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (i) has received a favorable determination or opinion letter as to its qualification, or (ii) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer. Nothing has occurred to cause, or that could reasonably be expected to cause, the disqualification of any Company Benefit Plan that is intended to be so qualified and no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code or Section 406 or 407 of ERISA, has occurred with respect to any Company Benefit Plan.

 

(e)          None of the Company, any of its Subsidiaries, or any trade or business (whether or not incorporated) that is treated as a “single employer” together with, or under “common control” or part of a “controlled group” with, any of the foregoing (within the meaning of Section 414(b), (c), (m), or (o) of the Code) sponsors, maintains, contributes to (or is obligated to contribute to), or has any material liability in respect of, or at any time in the six (6) years preceding the date hereof has sponsored, maintained, contributed to (or was obligated to contribute to), or had any material liability in respect of, (i) an “employee pension benefit plan,” as defined in Section 3(2) of ERISA, including a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) or a “single-employer plan” (as defined in Section 4001(a)(15) of ERISA), that is subject to Title IV of ERISA, Section 412 of the Code, or Section 302 of ERISA, (ii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or (iii) a “multiple employer plan” (as described in Section 210 of ERISA). No Company Benefit Plan provides any post-termination or retiree life insurance, health insurance or other employee welfare benefits to any Person, except as may be required by COBRA or similar Applicable Law.

 

(f)           There are, and since January 1, 2019, there have been, (i) no pending or written threatened Actions (other than routine claims for benefits in the Ordinary Course of Business) with respect to any Company Benefit Plan, and (ii) no audits, material inquiries, or similar proceedings pending or threatened in writing by the Department of Labor, Internal Revenue Service, or any other Governmental Authority with respect to any Company Benefit Plan.

 

(g)          Each Company Benefit Plan that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has been documented and operated in compliance with Section 409A of the Code. There is no agreement, plan, arrangement, or other contract by which the Company or any of its Subsidiaries is bound to compensate any Person for excise Taxes, penalties or interest pursuant to Section 4999 of the Code or additional Taxes, penalties or interest pursuant to Section 409A of the Code.

 

(h)          Neither the execution and delivery of this Agreement by the Company nor the consummation of any of the transactions contemplated by this Agreement (either alone or in connection with any other event, contingent or otherwise) will (i) result in any payment or benefit (including severance, golden parachute, bonus (including any pro rata bonus amounts that may become payable or accelerate pursuant to any employment agreement or similar arrangement), retention, incentive, severance or change in control payments, commission, or otherwise), becoming due to any current or former Service Provider, (ii) result in any forgiveness of Indebtedness to any current or former Service Provider, (iii) increase any compensation or benefits otherwise payable by the Company or any of its Subsidiaries or under any Company Benefit Plan, (iv) result in the acceleration of the time of payment or vesting of any compensation or benefits except as required under Section 411(d)(3) of the Code, or require the funding of any Company Benefit Plan, or (v) result in or satisfy a condition to the payment or vesting of any compensation or benefit (or any acceleration of the foregoing) that would, in combination with any other such payment, benefit, or acceleration, result in an “excess parachute payment” within the meaning of Section 280G(b) of the Code.

 

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Section 5.16.          Labor Matters.

 

(a)          The Company has made available to DSAC a true, complete and accurate list of all current employees of the Company and its Subsidiaries as of November 5, 2021, together with the following information with respect to each such employee: (i) the employee’s name or personal identifier, (ii) the position held by the employee (and whether part- or full-time), (iii) the employee’s principal location of employment and the name of the applicable employer entity, (iv) the employee’s base salary or wage rate, current annual bonus opportunity and most recent annual bonus received, (v) the employee’s date of hire, (vi) the employee’s leave status (and, if on leave, the nature of the leave and the expected return date), and (vii) exempt or non-exempt status under the Fair Labor Standards Act (for Company employees located in the United States). In addition, the Company separately made available a complete and accurate list of all current individual independent contractors, which include information relating to such contractor’s name, a description of the nature of his/her services and rate of compensation. Ten (10) days prior to the Closing Date, the Company shall provide DSAC with a true, complete and accurate list with all of the information set forth above updated as of such date.

 

(b)          Neither the Company nor any of its Subsidiaries is a party to, subject to, or in the process of entering into, any Labor Contract (whether written or unwritten) applicable to current or former Service Providers, nor are there any Service Providers represented by a works council or a labor organization or activities or proceedings of any labor union to organize any Service Providers. The consent of or consultation with, or the rendering of formal advice by, any labor or trade union, works council or other employee representative body is not required for the Company to enter into this Agreement or to consummate any of the transactions contemplated hereby.

 

(c)          Since January 1, 2019, (i) the Company and each of its Subsidiaries has been in compliance in all material respects with all Applicable Laws regarding labor and employment, including provisions thereof relating to wages, hours, collective bargaining, labor management relations, overtime, employee classification, discrimination, sexual harassment, civil rights, equal opportunity, affirmative action, work authorization, immigration, safety and health, plant closings and mass layoffs, workers compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes (collectively, the “Employment Laws”), (ii) there are no pending or written threatened complaints against the Company or its Subsidiaries regarding unfair labor practices before the National Labor Relations Board or any other Governmental Authority, (iii) there has been no pending or threatened in writing (and the Company does not otherwise reasonably anticipate), strike, labor dispute, slowdown, work stoppage or other labor stoppage or disruption with respect to the Company or any of its Subsidiaries, (iv) there have been no pending or threatened in writing Actions against the Company or any of its Subsidiaries with respect to the Employment Laws that would reasonably be expected to result in material liability to the Company and (v) neither the Company nor any of its Subsidiaries has (x) taken any action which would constitute a “plant closing” or “mass lay-off” within the meaning of the Worker Adjustment and Retraining Notification Act of 1988 or similar law (collectively, “WARN”) or issued any notification of a plant closing or mass lay-off required by WARN, or (y) incurred any liability or obligation under WARN that remains unsatisfied. Neither the Company nor any of its Subsidiaries has any material liability with respect to any misclassification of: (A) any Person as an independent contractor rather than as an employee, B) any employee currently self- employed or employed by another employer, or (C) any employee currently or formerly classified as exempt from any entitlement to overtime wages.

 

(d)          Since January 1, 2019, (i) no current or former Service Provider has made written allegations of sexual harassment against any current or former employee who directly or indirectly supervised two or more Service Providers, officer or director of the Company or its Subsidiaries, and (ii) neither the Company nor any of its Subsidiaries have entered into any settlement agreement related to sexual harassment or sexual misconduct by a Service Provider.

 

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Section 5.17.          Taxes.

 

(a)          All material federal, state, local and foreign Tax Returns required to be filed by the Company or any of its Subsidiaries (taking into account applicable extensions) have been timely filed, and all such Tax Returns are true, correct and complete in all material respects.

 

(b)          The Company and its Subsidiaries have paid all material Taxes (whether or not shown on any Tax Return) that are due and payable by the Company and its Subsidiaries, except with respect to matters contested in good faith by appropriate proceedings and with respect to which adequate reserves have been made in accordance with GAAP.

 

(c)          Except for Permitted Liens, there are no Liens for Taxes upon the property or assets of the Company or any of its Subsidiaries.

 

(d)          Neither the Company nor any of its Subsidiaries has any liability for a material amount of Taxes which has not been accrued for or reserved on the Company’s Financial Statements, other than any liability for unpaid Taxes that has been incurred since the end of the most recent fiscal year in connection with the operation of the business of the Company and its Subsidiaries in the ordinary course of business.

 

(e)          All material amounts of Taxes required to be withheld by the Company and its Subsidiaries have been withheld and, to the extent required, have been paid over to the appropriate Taxing Authority.

 

(f)           None of the Company or any of its Subsidiaries has received from any Taxing Authority any written notice of, nor to the knowledge of the Company is there currently, (i) any threatened, proposed, or assessed deficiency for Taxes of the Company or any of its Subsidiaries, except for such deficiencies that have been satisfied by payment, settled or withdrawn, or (ii) any audit or other proceeding by any Taxing Authority that is pending or in progress with respect to any Taxes due from the Company or any of its Subsidiaries.

 

(g)          Neither the Company nor any of its Subsidiaries has received a written claim within the last three years from a Taxing Authority in a jurisdiction where the Company and/or a Subsidiary has not paid Taxes or filed Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by, or required to file any Tax Return in, that jurisdiction.

 

(h)          Neither the Company nor any of its Subsidiaries has extended the statute of limitations for assessment, collection or other imposition of any material amount of Tax (other than pursuant to an extension of time to file a Tax Return obtained in the ordinary course of business), which extension is currently in effect.

 

(i)           Neither the Company nor any of its Subsidiaries is a party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Contract, other than (i) any customary commercial Contracts entered into in the Ordinary Course of Business which do not primarily relate to Taxes or (ii) any such agreement solely among the Company and its Subsidiaries.

 

(j)           Neither the Company nor any of its Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the prior two (2) years.

 

(k)          Neither the Company nor any of its Subsidiaries has ever been a member of an Affiliated Group (other than an Affiliated Group the common parent of which is the Company or any of its Subsidiaries and which consists only of the Company and its Subsidiaries). Neither the Company nor any of its Subsidiaries has liability for the Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Applicable Law), as transferor or successor, or by Contract (other than pursuant to any customary commercial Contract entered into in the Ordinary Course of Business which does not principally relate to Taxes).

 

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(l)           Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) beginning after the Closing Date as a result of: (i) any change in method of accounting made by the Company or any of its Subsidiaries prior to the Closing; (ii) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax law) executed by the Company or any of its Subsidiaries prior to the Closing; (iii) any installment sale or open transaction disposition made by the Company or any of its Subsidiaries prior to the Closing; (iv) any prepaid amount received by the Company or any of its Subsidiaries prior to the Closing outside the Ordinary Course of Business; (v) any investment in “United States property” within the meaning of Section 956 of the Code made by the Company or its Subsidiaries prior to the Closing; (vi) an election under Section 108(i) made by the Company or its Subsidiaries prior to the Closing; or (vii) Section 965 of the Code.

 

(m)         Neither the Company nor any of its Subsidiaries has any obligation to make any payment described in Section 965(h) of the Code that is due after the Closing Date.

 

(n)          All transactions between the Company and its Subsidiaries and all transactions between Subsidiaries of the Company were made on arm’s length in compliance with Applicable Law relating to transfer pricing.

 

(o)          Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).

 

(p)          Neither the Company nor any of its Subsidiaries has (i) deferred any Taxes under Section 2302 of the CARES Act, or (ii) claimed any Tax credit under Section 2301 of the CARES Act or Sections 7001-7003 of the Families First Coronavirus Response Act.

 

(q)          To the knowledge of the Company, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Domestication and/or the Merger from qualifying for the Intended Tax Treatment.

 

Section 5.18.          Insurance. With respect to each Insurance Policy: (a) the policy is in full force and effect, (b) neither the Company nor any of its Subsidiaries is in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and no event has occurred which, with or without notice or the lapse of time or both, will constitute such a breach or default, or permit termination or modification, under the policy, (c) to the knowledge of the Company, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, (d) no written or, to the knowledge of the Company, oral notice of cancellation, termination, non-renewal, disallowance or reduction in coverage has been received (or, to the Company’s knowledge, threatened), nor has there been any lapse in coverage since January 1, 2019, and (e) there are no claims by the Company nor any of its Subsidiaries pending under any Insurance Policy as to which coverage has been denied or disputed by the underwriters of such policies or in respect of which such underwriters have reserved their rights. Neither the Company nor any of its Subsidiaries have any material self-insurance programs. The Insurance Policies provide coverage to the Company and its Subsidiaries that to the knowledge of the Company are reasonable and appropriate considering the business of the Company and its Subsidiaries (including the Contracts to which they are bound).

 

Section 5.19.          Real Property; Assets.

 

(a)          Neither the Company nor any of its Subsidiaries owns or has owned any real property. Section 5.19(a) of the Company Disclosure Schedule contains a complete and accurate list of Leased Real Property. The Leased Real Property constitutes all of the real property occupied or operated by the Company and its Subsidiaries in connection with their business.

 

(b)          Each lease related to the Leased Real Property to which the Company or any of its Subsidiaries is a party is a legal, valid, binding and enforceable obligation of each of the parties thereto and is in full force and effect. The Company and its Subsidiaries have valid leasehold interests in, and enjoy undisturbed possession of, all Leased Real Property. Neither the Company nor any of its Subsidiaries is in material breach or material default under any such lease, and no condition exists which (with or without notice or lapse of time or both) would constitute a default by the Company or any of its Subsidiaries thereunder or, to the knowledge of the Company, by the other parties thereto.

 

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(c)          Neither the Company nor any of its Subsidiaries have subleased or otherwise granted any Person the right to use or occupy any Leased Real Property, which is still in effect. Neither the Company nor any of its Subsidiaries have mortgaged, deeded in trust, collaterally assigned or granted any other security interest in the Leased Real Property or any interest therein, which is still in effect. Except for Permitted Liens, there exist no Liens affecting all or any portion of the Leased Real Property created by, through or under the Company or any of its Subsidiaries.

 

(d)          There are no pending, or to the knowledge of the Company, threatened (i) Actions or other proceedings to take all or any portion of the Leased Real Property or any interests therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or (ii) sales or dispositions in relation to any such Action or proceeding. There is no purchase option, right of first refusal, first option or other similar right held by the Company or any of its Subsidiaries with respect to, or any real estate, building or other improvement affected by, any portion of the Leased Real Property.

 

(e)          The Company and its Subsidiaries have good title to, or in the case of leased properties and assets, have valid leasehold interests in, all of the property and assets (whether personal, tangible or intangible) reflected on the Interim Financial Statements or acquired by the Company and its Subsidiaries since June 30, 2021, except for properties, assets and rights sold since June 30, 2021 in the Ordinary Course of Business (or, with respect to such properties and assets sold after the date of this Agreement, as permitted pursuant to Section 7.01) or where the failure to have such good title or valid leasehold interests would not be material to the Company and its Subsidiaries, taken as a whole. None of such property, assets and rights is subject to any Lien (other than Permitted Liens). The assets of the Company and its Subsidiaries to be acquired by DSAC pursuant to this Agreement constitute all material tangible assets used or held for use by the Company and its Affiliates in, and necessary and sufficient for the operation of the businesses of the Company and its Subsidiaries as presently operated.

 

Section 5.20.          Environmental Matters.

 

(a)          The Company and its Subsidiaries are, and at all times since January 1, 2019 have been, in compliance with all Environmental Laws in all material respects, and all Permits held by the Company pursuant to applicable Environmental Laws are in all material respects in full force and effect and to the knowledge of the Company no appeal or any other Action is pending to revoke or modify any such Permit.

 

(b)          No written or, to the knowledge of the Company, oral notice of violation, demand, request for information, citation, summons or order has been received by the Company relating to or arising out of any Environmental Laws, other than those relating to matters that have been fully resolved or that remain pending and, if adversely determined, would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.

 

(c)          Neither the Company nor any of its Subsidiaries has agreed to indemnify any other Person against liability under Environmental Laws, or to assume or undertake any liability of another Person under Environmental Laws (other than pursuant to any customary commercial Contract entered into in the Ordinary Course of Business which does not principally relate to Environmental Laws).

 

(d)          Copies of all material written reports (in the case of reports with multiple drafts or versions, the final draft or version), notices of violation, orders, audits, assessments and all other material environmental reports, in the possession, custody or control of the Company or its Subsidiaries, relating to environmental conditions in, on or about the Leased Real Property or to the Company’s or its Subsidiaries’ compliance with Environmental Laws have been made available to DSAC.

 

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Section 5.21.          Affiliate Transactions. Except for any Company Benefit Plan (including any employment or stock appreciation rights agreements entered into in the Ordinary Course of Business by the Company or any of its Subsidiaries) or as set forth in Section 5.21 of the Company Disclosure Schedule, no (a) Company Shareholder holding 5% or more of the Company Common Stock (on an as-converted basis), (b) former or current director, officer, manager, employee, of the Company or any of its Subsidiaries or (c) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Securities Exchange Act of 1934), of any Person described in the foregoing clauses (a) or (b), in each case, other than the Company or any of its Subsidiaries (each a “Related Party”), is (i) a party to any Contract or business arrangement with the Company or any of its Subsidiaries, (ii) provides any services to, or is owed any money by or owes any money to, or has any claim or right against, the Company or any of its Subsidiaries (other than, in each case, compensation for services performed by a Person as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business), or (iii) directly or indirectly owns, or otherwise has any right, title or interest in, to or under, any tangible or intangible property, asset, or right that is, has been, or is currently planned to be used by the Company or any of its Subsidiaries (the Contracts, relationships, or transactions described in clauses (i) through (iii), the “Affiliate Transactions”).

 

Section 5.22.          Vendors. Section 5.22 of the Company Disclosure Schedule sets forth a complete and accurate list of the 10 most significant vendors of the Company, together with its Subsidiaries, as measured by amounts paid by the Company and its Subsidiaries for the 12 month period ended December 31, 2020 (the “Top 10 Vendors”), and the amount of consideration paid to such suppliers for such period. Since December 31, 2020, no Top 10 Vendor has cancelled, terminated, reduced or altered (including any material reduction in the rate or amount of sales or purchases or material increase in the prices charged or paid, as the case may be) its business relationship with the Company or any of its Subsidiaries, and the Company has not received written or, to the knowledge of the Company, oral notice from any of the Top 10 Vendors stating the intention of such Person to do so.

 

Section 5.23.          Certain Business Practices; Anti-Corruption.

 

(a)          The Company and its Subsidiaries, and their respective officers, directors, employees, and, to the knowledge of the Company, all agents, representatives or other Persons acting on its behalf, have complied with, are and will be in compliance with Anti-Corruption Laws.

 

(b)          Neither the Company nor any of its Subsidiaries, nor any of the Company’s or its Subsidiaries’ respective officers, directors, employees, or, to the knowledge of the Company, any agents, representatives or other Persons acting on behalf of the Company or its Subsidiaries, (i) has offered, promised, given or authorized the giving of money or anything else of value, whether directly or through another Person or entity, to (A) any Government Official or (B) any other Person with the knowledge that all or any portion of the money or thing of value will be offered or given to a Government Official, in each of the foregoing clauses (A) and (B) for the purpose of influencing any action or decision of the Government Official in his or her official capacity, including a decision to fail to perform his or her official duties, inducing the Government Official to use his or her influence with any Governmental Authority to affect or influence any official act, or otherwise obtaining an improper advantage; or (ii) has made or will make or authorize any other Person to make any payments or transfers of value which have the purpose or effect of commercial bribery, or acceptance or acquiescence in kickbacks or other unlawful or improper means of obtaining or retaining business. For purposes of the foregoing clauses (A) and (B), a Person shall be deemed to have “knowledge” with respect to conduct, circumstances, or results if such Person is aware of (i) the existence of or (ii) a high probability of the existence of such conduct, circumstances, or results.

 

(c)          The Company and each of its Subsidiaries has in place policies, procedures and controls that are reasonably designed to promote and ensure compliance with Anti-Corruption Laws.

 

(d)          Neither the Company, its Subsidiaries, or the Company’s or its Subsidiaries’ directors, officers, employees, nor, to the knowledge of the Company, any of the Company’s or its Subsidiaries’ Affiliates, agents, representatives or other Persons acting on its behalf, is, or is owned or controlled by one or more Persons that are: (i) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State, the United Nations Security Council, the European Union, the United Kingdom or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of territorial Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria). Neither the Company nor any of its Subsidiaries have, in the past five (5) years, conducted business with any Person or entity, or any of its respective officers, directors, employees, agents, representatives or other Persons acting on its behalf, that is (i) the subject of any Sanctions, or (ii) located, organized or resident in a country or territory that is the subject of territorial Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria), in either case in violation of sanctions.

 

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(e)          The operations of the Company and each of its Subsidiaries are and have been conducted at all times in the past five (5) years in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Anti-Money Laundering Laws”) and no Action involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Company’s knowledge, threatened.

 

Section 5.24.          Registration Statement and Proxy Statement. On the date the Proxy Statement is first mailed to DSAC Shareholders, and at the time of the DSAC Extraordinary General Meeting, none of the information furnished by or on behalf of the Company in writing specifically for inclusion in the Registration Statement or Proxy Statement will include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

Section 5.25.          Brokers’ Fees. Section 5.25 of the Company Disclosure Schedule sets forth each broker, finder, investment banker, intermediary or other Person that 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 the Company, any of its Subsidiaries or any of their Affiliates.

 

Section 5.26.          No Additional Representations and Warranties; No Outside Reliance. Except for the representations and warranties provided in this Article 5, and the representations and warranties as may be provided in the Ancillary Agreements, neither the Company nor any of its Subsidiaries or Affiliates, nor any of their respective directors, managers, officers, employees, equity holders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to or with respect to this Agreement or the transactions contemplated hereby or thereby to any DSAC Party. Neither the Company nor any of its Subsidiaries or Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating or with respect to any financial information, financial projections, forecasts, budgets or any other document or information made available to any DSAC Party or any other Person (including information in the “data site” maintained by or on behalf of the Company or provided in any formal or informal management presentation) except for the representations and warranties made by the Company to the DSAC Parties in this Article 5 and the representations and warranties as may be provided in the Ancillary Agreements. Each of the Company and its Subsidiaries hereby expressly disclaims any representations or warranties other than those expressly given by the Company in this Article 5 and as may be provided in the Ancillary Agreements. The Company acknowledges and agrees that, except for the representations and warranties contained in Article 6 or the Ancillary Agreements, none of the DSAC Parties or any of their Subsidiaries or Affiliates nor any other Person has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information, data, or statement regarding any of the DSAC Parties or the transactions contemplated hereunder or thereunder, including in respect of the DSAC Parties, the business, the operations, prospects, or condition (financial or otherwise), or the accuracy or completeness of any document, projection, material, statement, or other information not expressly set forth in Article 6 or the Ancillary Agreements. The Company is not relying on any representations or warranties other than those representations or warranties set forth in Article 6 or the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 5.26 shall limit remedies in the event of fraud.

 

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Article 6
Representations and Warranties of the DSAC Parties

 

Except as set forth in the DSAC Disclosure Schedule (subject to Section 12.14) or in any publicly available SEC Document filed by DSAC before the date of this Agreement (other than disclosures in the “Risk Factors” or “Forward Looking Statements” of any such SEC Document and other disclosures to the extent that such disclosure is predictive or forward-looking in nature, except for any specific factual information contained therein, which shall not be excluded), the DSAC Parties represent and warrant to the Company as follows:

 

Section 6.01.          Corporate Organization.

 

(a)          Each of the DSAC Parties has been duly incorporated, organized or formed and is validly existing and in good standing under the laws of its jurisdiction of incorporation, organization or formation, as applicable, and has all requisite corporate or similar organizational power and authority to own or lease its properties and to conduct its business as it is now being conducted.

 

(b)          A true and complete copy of the certificate of incorporation of each DSAC Party, each certified by the Secretary of State of the State of Delaware or the Registrar of Companies in the Cayman Islands, as applicable, and a true and correct copy of the bylaws, as applicable, of each DSAC Party, have been made available by DSAC to the Company and each is in full force and effect and each of the DSAC Parties is not in violation of any of the provisions thereof.

 

(c)          Each of the DSAC Parties is duly licensed or qualified and, where applicable, in good standing as a foreign corporation or other entity in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified would not reasonably be expected to have a DSAC Material Adverse Effect.

 

Section 6.02.          Corporate Authorization.

 

(a)          Each of the DSAC Parties has all requisite corporate or similar organizational power and authority to execute and deliver this Agreement and each Ancillary Agreement to which such DSAC Party is (or is specified to be) a party and to perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and each Ancillary Agreement to which a DSAC Party is (or is specified to be) a party, and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized and approved by the board of directors of each DSAC Party, and no other corporate or similar organizational action on the part of any DSAC Party or any holders of any Equity Securities of any DSAC Party is necessary to authorize the execution and delivery by such DSAC Party of this Agreement or the Ancillary Agreements to which such DSAC Party is (or is specified to be) a party, the performance by such DSAC Party of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby, other than (i) the DSAC Shareholder Approval and (ii) the adoption of this Agreement by DSAC in its capacity as the sole shareholder of Merger Sub, which adoption will occur immediately following the execution of this Agreement by Merger Sub. This Agreement has been duly and validly executed and delivered by each of the DSAC Parties and, assuming this Agreement constitutes a legal, valid and binding obligation of the other parties hereto, this Agreement constitutes a legal, valid and binding obligation of each of the DSAC Parties, enforceable against each of the DSAC Parties in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. Each Ancillary Agreement to which a DSAC Party is (or is specified to be) a party, when executed and delivered by such DSAC Party, will be duly and validly executed and delivered by such DSAC Party, and, assuming such Ancillary Agreement constitutes a legal, valid and binding obligation of the other parties thereto, will constitute a legal, valid and binding obligation of such DSAC Party, enforceable against such DSAC Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

 

(b)          The DSAC Shareholder Approval is the only vote of any of DSAC’s share capital necessary in connection with the entry into this Agreement by the DSAC Parties, and the consummation of the transactions contemplated hereby, including the Closing.

 

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(c)          At a meeting duly called and held, the board of directors of each of the DSAC Parties has unanimously: (i) approved this Agreement and the transactions contemplated by this Agreement, (ii) determined that this Agreement and the transactions contemplated hereby are advisable and in the best interests of their respective stockholders; (iii) determined that the fair market value of the Company is equal to at least 80% of the Trust Account, as applicable; (iv) approved the transactions contemplated by this Agreement as a Business Combination; and (v) resolved to recommend to the Pre-Closing DSAC Holders approval of the transactions contemplated by this Agreement (the “DSAC Board Recommendation”).

 

Section 6.03.          Governmental Authorities; Consents. Assuming the representations and warranties of the Company contained in this Agreement are true, correct and complete, no consent, approval or authorization of, or designation, declaration, filing, notice or action with, any Governmental Authority or other Person is required on the part of any DSAC Party with respect to any DSAC Party’s execution or delivery of this Agreement or any Ancillary Agreement to which a DSAC Party is (or is specified to be) a party or the consummation of the transactions contemplated hereby or thereby, except for (a) applicable requirements of the HSR Act or foreign Antitrust Laws, (b) any consents, approvals, authorizations, designations, filings, notices or actions, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to the DSAC Parties, taken as a whole, or (c) approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ.

 

Section 6.04.          Noncontravention. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which any DSAC Party is (or is specified to be) a party by the DSAC Parties and the consummation of the transactions contemplated hereby and thereby do not and will not (a) contravene, conflict with or violate any provision of, or result in the breach of, any Applicable Law, or the certificate of incorporation, bylaws or other organizational documents of any DSAC Party or any Subsidiary of any DSAC Party, (b) assuming the receipt of the consents, approvals, authorizations and other requirements set forth in Section 6.03, conflict with, violate or result in a breach of any term, condition or provision of any material Contract to which any DSAC Party or any Subsidiary of any DSAC Party is a party or by which any DSAC Party or any Subsidiary of any DSAC Party is bound, or terminate or result in a default under, or require any consent, notice or other action by any Person under (with or without notice or lapse of time, or both) or the loss of any right under, or create any right of termination, acceleration or cancellation of any material Contract, or (c) result in the creation of any Lien (except for Permitted Liens) upon any of the properties or assets of any DSAC Party or any Subsidiary of any DSAC Party or constitute an event which, after notice or lapse of time or both, would reasonably be expected to result in any such violation, breach, termination or creation of a Lien, except in each case of clauses (a), (b) and (c) above to the extent that the occurrence of each of the foregoing would not reasonably be expected to be, individually or in the aggregate, material to the DSAC Parties as a whole.

 

Section 6.05.          Litigation and Proceedings. There are no Actions (other than investigations), or, to the knowledge of DSAC, investigations, pending before or by any Governmental Authority or, to the knowledge of DSAC, threatened, against any DSAC Party that would reasonably be expected to be, individually or in the aggregate, material to the DSAC Parties as a whole or which in any manner challenges or seeks to prevent or enjoin the transactions contemplated hereby. There is no unsatisfied judgment or any open injunction binding upon any DSAC Party.

 

Section 6.06.          DSAC Capitalization.

 

(a)          The authorized share capital of DSAC consists of  (i) 180,000,000 DSAC Class A Ordinary Shares, of which 17,5000,000 DSAC Class A Ordinary Shares are issued and outstanding as of the date hereof, (ii) 20,000,000 DSAC Class B Ordinary Shares, of which 4,375,000 DSAC Class B Ordinary Shares are issued and outstanding as of the date hereof, and (iii) 1,000,000 preference shares, par value $0.0001 per share, of which no preference shares are issued and outstanding as of the date hereof. As of the date hereof, there are issued and outstanding DSAC Warrants in respect of 15,750,000 DSAC Class A Ordinary Shares, which will entitle the holders thereof to purchase shares of Newco Common Stock at an exercise price of $11.50 per share on the terms and conditions set forth in the applicable warrant agreement. All of the issued and outstanding DSAC Class A Ordinary Shares and DSAC Class B Ordinary Shares (i) have been duly authorized and validly issued and are fully paid and nonassessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, and (ii) are free and clear of all Liens and other restrictions (including any restriction on the right to vote, sell or otherwise dispose of such Equity Securities).

 

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(b)          Except for the DSAC Warrants, and the DSAC Class A Ordinary Shares and the DSAC Class B Ordinary Shares set forth in Section 6.06(a), there are no Equity Securities of DSAC. Other than the DSAC Shareholder Redemption Right, there are no outstanding contractual obligations of DSAC to repurchase, redeem or otherwise acquire any Equity Securities of DSAC.

 

(c)          Merger Sub is wholly-owned by DSAC and Merger Sub holds no Equity Securities of any Person.

 

(d)          The Newco Common Stock will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with Applicable Law, (iii) not be issued in breach or violation of any preemptive rights or Contract, and (iv) be issued with good and valid title, free and clear of any Liens other than Liens arising out of, under or in connection with applicable federal, state and local securities laws and any restrictions set forth in the Newco Certificate of Incorporation or the Newco Bylaws.

 

Section 6.07.          Undisclosed Liabilities.

 

(a)          Merger Sub was formed solely for the purpose of effecting the transactions contemplated by this Agreement and has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated hereby and has no, and at all times prior to the Effective Time except as expressly contemplated by this Agreement, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation.

 

(b)          DSAC was formed solely for the purpose of effecting a Business Combination and has not engaged in any business activities or conducted any operations other than in connection with its formation and funding, including its initial public offering, and the sourcing and negotiation of a Business Combination and the execution, delivery and performance of this Agreement.

 

(c)          There is no material liability, debt or obligation of any DSAC Party, except for liabilities, debts and obligations (i) reflected or reserved for on DSAC’s balance sheet for the fiscal quarter ended June 30, 2021 as reported on Form 10-Q or disclosed in the notes thereto, (ii) that have arisen since June 30, 2021 in the ordinary course of the operation of business of DSAC consistent with past practice or (iii) incurred in connection with the transactions contemplated by this Agreement.

 

Section 6.08.          DSAC SEC Documents; Controls.

 

(a)          DSAC has timely filed or furnished with the SEC all forms, reports, schedules and statements required to be filed or furnished under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (such forms, reports, schedules, and statements other than the Proxy Statement and the Registration Statement, the “SEC Documents”), except for those filed or furnished in the SEC Documents. As of their respective filing (or furnishing) dates, each of the SEC Documents, as amended (including all exhibits and schedules and documents incorporated by reference therein), complied in all materials respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such SEC Documents, and none of the SEC Documents contained, when filed or, if amended prior to the date hereof, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the SEC Documents are the subject of ongoing SEC review or outstanding SEC comment and, to DSAC’s knowledge, neither the SEC nor any other Governmental Authority is conducting any investigation or review of any SEC Document. No written notice of any SEC review or investigation of DSAC or the SEC Documents has been received by DSAC.

 

(b)          The financial statements of DSAC included in the SEC Documents, including all notes and schedules thereto (the “DSAC Financials”), complied in all material respects when filed, or if amended prior to the date hereof, as of the date of such amendment, with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP (except as may be indicated in the notes thereto, or in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in all material respects in accordance with the applicable requirements of GAAP (except as may be indicated in the notes thereto, subject, in the case of the unaudited statements, to normal year-end audit adjustments that are not material) the financial position of DSAC, as of their respective dates, and the results of operations and cash flows of DSAC, for the periods presented therein.

 

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(c)          DSAC has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act and the listing standards of the NASDAQ). DSAC’s disclosure controls and procedures are (i) designed to provide reasonable assurance regarding the reliability of DSAC’s financial reporting and the preparation of financial statements for external purposes in material conformity with GAAP and (ii) reasonably designed to ensure that material information relating to DSAC is accumulated and communicated to DSAC’s management as appropriate. Since DSAC’s formation, there have been no significant deficiencies or material weakness in DSAC’s internal control over financial reporting (whether or not remediated) and no change in DSAC’s control over financial reporting that has materially affected, or is reasonably likely to materially affect, DSAC’s internal control over financial reporting.

 

Section 6.09.          Listing. The issued and outstanding DSAC Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NASDAQ. As of the date hereof, there is no Action pending, or to the knowledge of DSAC, threatened against DSAC by the NASDAQ or the SEC with respect to any intention by such entity to deregister any DSAC Ordinary Shares or prohibit or terminate the listing of any DSAC Ordinary Shares on the NASDAQ.

 

Section 6.10.          Registration Statement and Proxy Statement. At the Effective Time, the Registration Statement, and when first filed in accordance with Rule 424(b) or filed pursuant to Section 14A, the Proxy Statement (or any amendment or supplement thereto), will comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act. On the date of any filing pursuant to Rule 424(b), the date the Proxy Statement is first mailed to DSAC Shareholders, and at the time of the DSAC Extraordinary General Meeting, the Proxy Statement (together with any amendments or supplements thereto) will not include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that DSAC makes no representations or warranties as to the information contained in or omitted from the Registration Statement or Proxy Statement in reliance upon and in conformity with information furnished in writing to DSAC by or on behalf of the Company specifically for inclusion in the Registration Statement or the Proxy Statement.

 

Section 6.11.          Trust Account. As of the date of this Agreement, DSAC has (and, assuming no holders of DSAC Ordinary Shares exercise the DSAC Shareholder Redemption Right, will have immediately prior to the Closing) at least $175,000,000 in the Trust Account, with such funds invested in United States Government securities meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940 and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of DSAC and the Trustee, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters and (except for the Trust Agreement) there are no agreements, contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the Prospectus to be inaccurate in any material respect or (b) entitle any Person (other than (x) holders of DSAC Ordinary Shares who shall have exercised their DSAC Shareholder Redemption Right and (y) any underwriters in connection with DSAC’s initial public offering which may be entitled to deferred underwriting discounts and commissions specified in the Prospectus) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except (i) to pay income and franchise Taxes from any interest income earned in the Trust Account and (ii) to redeem DSAC Ordinary Shares pursuant to the DSAC Shareholder Redemption Right. DSAC has performed all material obligations required to be performed by it to date under, and is not in material default or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and, to the knowledge of DSAC, no event has occurred which, with due notice or lapse of time or both, would constitute such a material default thereunder. There are no Actions pending or, to the knowledge of DSAC, threatened with respect to the Trust Account.

 

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Section 6.12.          Absence of Certain Changes. Since its respective formation through the date of this Agreement, neither of the DSAC Parties has (a) conducted business other than its formation, the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described in the Prospectus (including the investigation of the Company and its Subsidiaries and the negotiation and execution of this Agreement) and related activities and (b) been subject to a DSAC Material Adverse Effect. Except as set forth in DSAC’s SEC reports filed prior to the date of this Agreement, and except as contemplated by this Agreement, since September 30, 2020 through the date of this Agreement, there has not been any action taken or agreed upon by DSAC or any of its Subsidiaries that would be prohibited by Section 8.01 if such action were taken on or after the date hereof without the consent of the Company.

 

Section 6.13.          Compliance with Laws; Permits. Each of the DSAC Parties and each of the DSAC Parties’ officers, directors and employees are, and since its respective date of formation have been, in compliance with all Applicable Laws in all material respects. Since each DSAC Party’s respective date of formation, (i) none of the DSAC Parties has been subjected to, or received any written notification from, any Governmental Authority of a violation of any Applicable Law or any investigation by a Governmental Authority for actual or alleged violation of any Applicable Law, (ii) to the knowledge of each of the DSAC Parties, no claims have been filed against any of the DSAC Parties with any Governmental Authority alleging any material failure by any of the DSAC Parties to comply with any Applicable Law, and (iii) none of the DSAC Parties have made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Applicable Law.

 

Section 6.14.          Contracts. Other than this Agreement, the Ancillary Agreements or any Contracts that are exhibits to the SEC Documents, there are no Contracts to which any of the DSAC Parties are a party or by which any DSAC Party’s properties or assets may be bound, subject or affected, which (a) creates or imposes a liability greater than $50,000, (b) may not be cancelled by DSAC on less than 60 days’ prior notice without payment of a material penalty or termination fee or (c) prohibits, prevents, restricts or impairs in any material respect any business practice of any of the DSAC Parties as its business is currently conducted, any acquisition of material property by the DSAC Parties, or restricts in any material respect the ability of any of the DSAC Parties from engaging in business as currently conducted by it or from competing with any other Person (each such contract, a “DSAC Material Contract”). All DSAC Material Contracts have been made available to the Company.

 

Section 6.15.          Employees and Employee Benefits Plans. Neither of the DSAC Parties (a) have any employees or (b) maintain, sponsor, contribute to or otherwise have any liability under any employee benefit plans. Neither the execution and delivery of this Agreement or the other Ancillary Agreements nor the consummation of the transactions contemplated by this Agreement will (a) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer or employee of DSAC; or (b) result in the acceleration of the time of payment or vesting of any such benefits. Other than reimbursement of any out-of-pocket expenses incurred by DSAC’s officers and directors in connection with activities on DSAC’s behalf in an aggregate amount not in excess of the amount of cash held by DSAC outside of the Trust Account (exclusive of the proceeds of the PIPE Financing), DSAC has no unsatisfied material liability with respect to any officer or director.

 

Section 6.16.          Properties. DSAC does not own, license or otherwise have any right, title or interest in any material Intellectual Property rights (other than trademarks). DSAC does not own, or otherwise have an interest in, any real property, including under any real property lease, sublease, space sharing, license or other occupancy agreement.

 

Section 6.17.          Affiliate Transactions. Except for equity ownership or employment relationships (including any employment or similar Contract) expressly contemplated by this Agreement, any non-disclosure or confidentiality Contract entered into in connection with the “wall-crossing” of DSAC Shareholders, any Ancillary Agreement or any Contract that is an exhibit to the SEC Documents or described therein, (a) there are no transactions or Contracts, or series of related transactions or Contracts, between DSAC, on the one hand, and any related party of DSAC, Sponsor, any beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5% or more of the DSAC Ordinary Shares or, to the knowledge of DSAC, any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, nor is any Indebtedness owed by or to DSAC, on the one hand, to or by Sponsor or any such related party, beneficial owner, associate or immediate family member, and (b) none of the officers or directors (or members of a similar governing body) of DSAC, Sponsor, any beneficial owner of 5% or more of the DSAC Ordinary Shares or, to the knowledge of DSAC, their respective “associates” or “immediate family members” owns directly or indirectly in whole or in part, or has any other material interest in, (i) any material tangible or real property that DSAC uses, owns or leases (other than through any Equity Securities of DSAC) or (ii) any customer, vendor or other material business relation of DSAC or Sponsor.

 

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Section 6.18.          Taxes.

 

(a)          All material federal, state, local and foreign Tax Returns required to be filed by the DSAC Parties (taking into account applicable extensions) have been timely filed in all material respects, and all such Tax Returns are true, correct and complete in all material respects.

 

(b)          The DSAC Parties have paid all material Taxes (whether or not shown on any Tax Return) that are due and payable by the DSAC Parties, except with respect to matters contested in good faith by appropriate proceedings and with respect to which adequate reserves have been made in accordance with GAAP.

 

(c)          Except for Permitted Liens, there are no Liens for Taxes upon the property or assets of the DSAC Parties.

 

(d)          None of the DSAC Parties has any liability for a material amount of unpaid Taxes which has not been accrued for or reserved on the DSAC Financials, other than any liability for unpaid Taxes that has been incurred since the end of the most recent fiscal year in connection with the operation of the business of the DSAC Parties in the ordinary course of business.

 

(e)          All material amounts of Taxes required to be withheld by the DSAC Parties have been withheld and, to the extent required, have been paid over to the appropriate Taxing Authority.

 

(f)           None of the DSAC Parties has received from any Taxing Authority written notice of, nor to the knowledge of the DSAC Parties is there currently (i) any threatened, proposed, or assessed deficiency for Taxes of the DSAC Parties, except for such deficiencies that have been satisfied by payment, settled or withdrawn, or (ii) any audit or other proceeding by any Taxing Authority that is pending or in progress with respect to any Taxes due from any of the DSAC Parties.

 

(g)          None of the DSAC Parties has received a written claim within the last three years from a Taxing Authority in a jurisdiction where such DSAC Party has not paid Taxes or filed Tax Returns that such DSAC Party is or may be subject to taxation by, or required to file Tax Returns in, such jurisdiction.

 

(h)          None of the DSAC Parties has extended the statute of limitations for assessment, collection or other imposition of any material amount of Tax (other than pursuant to an extension of time to file a Tax Return obtained in the ordinary course of business), which extension is currently in effect.

 

(i)           None of the DSAC Parties is a party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Contract, other than any customary commercial Contracts entered into in the ordinary course of business which do not primarily relate to Taxes.

 

(j)           None of the DSAC Parties has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the prior two (2) years.

 

(k)          None of the DSAC Parties has ever been a member of an Affiliated Group. None of the DSAC Parties has liability for the Taxes of any other Person (other than a DSAC Party) under Treasury Regulations Section 1.1502-6 (or any similar provision of Applicable Law), as transferor or successor, or by Contract (other than pursuant to any customary commercial Contract entered into in the ordinary course of business which does not principally relate to Taxes).

 

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(l)           None of the DSAC Parties will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) beginning after the Closing Date as a result of: (i) any change in method of accounting made by a DSAC Party prior to the Closing; (ii) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed by a DSAC Party prior to the Closing; (iii) any installment sale or open transaction disposition made by a DSAC Party prior to the Closing; (iv) any prepaid amount received by a DSAC Party prior to the Closing outside the ordinary course of business; (v) any investment in “United States property” within the meaning of Section 956 of the Code made by any DSAC Party on or prior to the Closing; (vi) an election under Section 108(i) made by any DSAC Party prior to the Closing; or (vii) Section 965 of the Code.

 

(m)         None of the DSAC Parties has any obligation to make any payment described in Section 965(h) of the Code that is due after the Closing Date.

 

(n)          All transactions between the DSAC Parties were made on arm’s length in compliance with Applicable Law relating to transfer pricing.

 

(o)          None of the DSAC Parties has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).

 

(p)          None of the DSAC Parties has (i) deferred any Taxes under Section 2302 of the CARES Act or (ii) claimed any Tax credit under Section 2301 of the CARES Act or Sections 7001-7003 of the Families First Coronavirus Response Act.

 

(q)          To the knowledge of the DSAC Parties, there are no facts, circumstances or plans that, either alone or in combination, could reasonably be expected to prevent the Domestication and/or the Merger from qualifying for the Intended Tax Treatment.

 

Section 6.19.          PIPE Investment; Backstop Agreement.

 

(a)          DSAC has delivered to the Company true, correct and complete copies of each of the PIPE Subscription Agreements entered into by DSAC with the applicable PIPE Investors named therein, pursuant to which the PIPE Investors have committed to provide the PIPE Financing. To the knowledge of DSAC, with respect to each PIPE Investor, each PIPE Subscription Agreement with such PIPE Investors is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by DSAC. Each PIPE Subscription Agreement is a legal, valid and binding obligation of DSAC and, to the knowledge of DSAC, each PIPE Investor that is party thereto, and none of the execution, delivery or performance of obligations under such PIPE Subscription Agreement by DSAC or, to the knowledge of DSAC, such PIPE Investor, violates any Applicable Laws. There are no other agreements, side letters, or arrangements between DSAC and any PIPE Investor relating to any PIPE Subscription Agreement that could affect the obligation of such PIPE Investors to contribute to DSAC the applicable portion of the PIPE Financing Amount set forth in the PIPE Subscription Agreement of such PIPE Investors, and, as of the date hereof, DSAC does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any PIPE Subscription Agreement not being satisfied, or the PIPE Financing Amount not being available to DSAC, on the Closing Date. To the knowledge of DSAC, no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of DSAC under any material term or condition of any PIPE Subscription Agreement and, as of the date hereof, DSAC has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any PIPE Subscription Agreement. The PIPE Subscription Agreements contain all of the conditions precedent (other than the conditions contained in the other agreements related to the transactions contemplated herein) to the obligations of the PIPE Investors to contribute to DSAC the applicable portion of the PIPE Financing Amount set forth in the PIPE Subscription Agreements on the terms therein.

 

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(b)          DSAC has delivered to the Company a true, correct and complete copy of the Backstop Agreement entered into by DSAC with the Backstop Parties, pursuant to which the Backstop Parties have committed to provide the Backstop Amount on the terms and conditions set forth in the Backstop Agreement. To the knowledge of DSAC, the Backstop Agreement with the Backstop Parties is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by DSAC. The Backstop Agreement is a legal, valid and binding obligation of DSAC and, to the knowledge of DSAC, the Backstop Parties, and none of the execution, delivery or performance of obligations under such Backstop Agreement by DSAC or, to the knowledge of DSAC, the Backstop Parties, violates any Applicable Law. There are no other agreements, side letters, or arrangements between DSAC and the Backstop Parties relating to the Backstop Agreement that could affect the obligation of the Backstop Parties to contribute to DSAC the applicable portion of the Backstop Amount, if any is required to be contributed thereunder, set forth in the Backstop Agreement, and, as of the date hereof, DSAC does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in the Backstop Agreement not being satisfied, or the Backstop Amount not being available to DSAC, if any, on the Closing Date. To the knowledge of DSAC, no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of DSAC under any material term or condition of the Backstop Agreement and, as of the date hereof, DSAC has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in the Backstop Agreement. The Backstop Agreement contains all of the conditions precedent (other than the conditions contained in the other agreements related to the transactions contemplated herein) to the obligations of the Backstop Parties to contribute to DSAC the Backstop Amount (if required) set forth in the Backstop Agreement on the terms therein.

 

(c)          No fees, consideration or other discounts are payable or have been agreed by DSAC or any of its Subsidiaries (including, from and after the Closing, the Surviving Corporation and its Subsidiaries) to any PIPE Investor in respect of its portion of the PIPE Financing Amount, or to the Backstop Parties with respect to the Backstop Amount, except as set forth in the PIPE Subscription Agreements or the Backstop Agreement, respectively.

 

Section 6.20.          Certain Business Practices; Anti-Corruption.

 

(a)          The DSAC Parties, each of the DSAC Parties’ respective Affiliates, officers, directors, managers, employees, and, to the knowledge of DSAC, all agents, representatives or other Persons acting on behalf of the DSAC Parties, have complied with and are in compliance in all respects with Anti-Corruption Laws.

 

(b)          Neither the DSAC Parties nor any of the DSAC Parties’ respective Affiliates, officers, directors, managers, employees, or, to the knowledge of DSAC, any agents, representatives or other Persons acting on behalf of the DSAC Parties, (i) has offered, promised, given or authorized the giving of money or anything else of value, whether directly or through another person or entity, to (A) any Government Official or (B) any other Person with the knowledge that all or any portion of the money or thing of value will be offered or given to a Government Official, in each of the foregoing clauses (A) and (B) for the purpose of influencing any action or decision of the Government Official in his or her official capacity, including a decision to fail to perform his or her official duties, inducing the Government Official to use his or her influence with any Governmental Authority to affect or influence any official act, or otherwise obtaining an improper advantage; or (ii) has made or will make or authorize any other Person to make any payments or transfers of value which have the purpose or effect of commercial bribery, or acceptance or acquiescence in kickbacks or other unlawful or improper means of obtaining or retaining business. For purposes of the foregoing clauses (A) and (B), a Person shall be deemed to have “knowledge” with respect to conduct, circumstances or results if such Person is aware of (i) the existence of or (ii) a high probability of the existence of such conduct, circumstances or results.

 

(c)          The DSAC Parties have in place policies, procedures and controls that are reasonably designed to promote and ensure compliance with Anti-Corruption Laws.

 

(d)          Neither the DSAC Parties, nor to the knowledge of DSAC any of DSAC’s Affiliates or any of its or their directors, officers, employees, agents or representatives, is, or is owned or controlled by one or more Persons that are: (i) the subject of any Sanctions or (ii) located, organized or resident in a country or territory that is the subject of territory-wide Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria). None of the DSAC Parties have conducted business with any Person or entity, or any of its respective officers, directors, employees, agents, representatives or other Persons acting on its behalf, that is (i) the subject of any Sanctions, or (ii) located, organized or resident in a country or territory that is the subject of territorial Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria).

 

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(e)          The operations of the DSAC Parties are and have been conducted at all times in material compliance with all Anti- Money Laundering Laws.

 

Section 6.21.          Independent Investigation. DSAC and its Affiliates and their respective representatives have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Company and its Subsidiaries, and DSAC acknowledges that it and they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company and its Subsidiaries for such purpose. DSAC acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated herein, it has relied solely upon its own investigation and the express representations and warranties of the Company set forth in Article 5 (including the related portions of the Company Disclosure Schedule) or of the Company or Company Shareholders set forth in the Ancillary Agreements; and (b) none of the Company, its Affiliates nor their respective representatives have made any express or implied representation or warranty as to the Company and its Subsidiaries, or this Agreement, except as expressly set forth in Article 5 (including the related portions of the Company Disclosure Schedule) or in the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 6.21 shall limit remedies in the event of fraud.

 

Section 6.22.          Brokers’ Fees. Except fees described on Section 6.22 of the DSAC Disclosure Schedule, 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 DSAC or any of its Affiliates.

 

Section 6.23.          No Additional Representations and Warranties; No Outside Reliance. Except for the representations and warranties provided in this Article 6, and the representations and warranties as may be provided in the Ancillary Agreements, none of the DSAC Parties, nor any of their respective directors, managers, officers, employees, equity holders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to or with respect to this Agreement or the transactions contemplated hereby or thereby to the Company or any Company Shareholder. None of the DSAC Parties, nor any of their respective directors, managers, officers, employees, equityholders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating or with respect to any information regarding the DSAC Parties or otherwise, except for the representations and warranties made by the DSAC Parties to the Company in this Article 6 and the representations and warranties as may be provided in the Ancillary Agreements. Each of the DSAC Parties hereby expressly disclaims any representations or warranties other than those expressly given by the DSAC Parties in this Article 6 and as may be provided in the Ancillary Agreements. Each of the DSAC Parties acknowledges and agrees that, except for the representations and warranties contained in Article 5 or the Ancillary Agreements, none of the Company or any of its Subsidiaries or Affiliates nor any other Person has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information, data, or statement regarding the Company or any of the Subsidiaries of the Company or the transactions contemplated hereunder or thereunder, including in respect of the Company, the business, the operations, prospects, or condition (financial or otherwise), or the accuracy or completeness of any document, projection, material, statement, or other information, not expressly set forth in Article 5 or the Ancillary Agreements. The DSAC Parties are not relying on any representations or warranties other than those representations or warranties set forth in Article 5 or as may be provided in the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 6.23 shall limit remedies in the event of fraud.

 

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Article 7
Covenants of the Company

 

Section 7.01.          Conduct of Business. From the date of this Agreement until the Closing Date (the “Interim Period”), the Company shall, and shall cause its Subsidiaries to, except as set forth on Section 7.01 of the Company Disclosure Schedule, as expressly required by this Agreement, as consented to by DSAC in writing (which consent shall not be unreasonably withheld, conditioned or delayed; provided, that, DSAC shall be deemed to have consented if DSAC does not object or request further information with respect to such Company Request in writing (which objection or request shall be made via email) within seventy-two (72) hours after a written request for such consent is delivered (which delivery shall be made via email) to Manoj Jain and Jason Ng by the Company (a “Company Request”)) or as required by Applicable Law, use commercially reasonable efforts to: (i)  operate its business only in the Ordinary Course of Business, (ii) preserve the business of the Company, (iii) timely pay all material Taxes that become due and payable by it (except to the extent being contested in good faith by appropriate Actions), and (iv) not:

 

(a)          change, amend or propose to amend the certificate of incorporation, bylaws or other organizational documents of the Company or any of its Subsidiaries;

 

(b)          directly or indirectly adjust, split, combine, subdivide, issue, pledge, deliver, award, grant redeem, purchase or otherwise acquire or sell, or authorize or propose the issuance, pledge, delivery, award, grant or sale (including the grant of any encumbrances) of, any Equity Securities of the Company, including any Company Shares, or any Equity Securities of any of the Subsidiaries of the Company, other than the grant of Company Options in the Ordinary Course of Business;

 

(c)          other than in the Ordinary Course of Business, (i) modify, voluntarily terminate, permit to lapse, waive, or fail to enforce any material right or remedy under any Significant Contract, (ii) materially amend, extend or renew any Significant Contract or (iii) enter into any Significant Contract;

 

(d)          (i) enter into or amend any termination, employment, consulting, bonus, change in control, retention or severance agreement with any employee at the level of Director or higher, (ii) increase the compensation or benefits provided to any current or former Service Provider, other than increases in the Ordinary Course of Business for employees below the level of Director, with such increases not to exceed 4% on an annualized basis, (iii) grant any equity or equity based awards to any current or former Service Provider, (iv) other than as required by the terms of the Company Benefit Plans in effect on the date hereof and made available to the DSAC Parties, accelerate the vesting or payment of any equity or equity-based awards held by any current or former Service Provider, (v) except as required by applicable Law or for changes in health and welfare benefits made in the Ordinary Course of Business in connection with open enrollment, establish, adopt, enter into, amend, or terminate any Company Benefit Plan (except as otherwise permitted by this Section 7.01) or Labor Contract, (vi) hire or terminate (other than for cause) any employees at the level of Director or above or (vii) take any action (or fail to take any action) that would provide an employee at the level of Director or higher with the right to resign and be eligible for severance benefits due to having “good reason” or another term of similar meaning pursuant to a preexisting agreement;

 

(e)          acquire (whether by merger or consolidation or the purchase of a substantial portion of the equity in or assets of or otherwise) any other Person;

 

(f)           (i) repurchase, prepay, redeem or incur, create, assume or otherwise become liable for Indebtedness, including by way of a guarantee or an issuance or sale of debt securities, or issue or sell options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries, enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another Person, or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any other Person other than another direct or indirect wholly owned Subsidiary of the Company and other than loans and advances to directors, officers and employees in the Ordinary Course of Business or under the terms of existing Company Benefit Plans, (iii) cancel or forgive any material debts or other material amounts owed to the Company or any of its Subsidiaries other than in the Ordinary Course of Business or (iv) commit to do any of the foregoing;

 

(g)          (i) make or change any material Tax election, (ii) adopt or change any material Tax accounting method except as required by Law, (iii) settle or compromise any material Tax liability, (iv) enter into any closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law), (v) enter into any Tax sharing or similar agreement, (vi) enter into any material agreement with a Taxing Authority with respect to Taxes, (vii) consent to any extension or waiver of the statute of limitations regarding any material amount of Taxes, (viii) amend any Tax Return in any material respect unless required by Applicable Law, or (ix) surrender any right to claim a material refund of Tax;

 

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(h)          except for non-exclusive licenses granted in the Ordinary Course of Business, consistent with past practice, assign, transfer or dispose of, license, abandon, sell, lease, sublicense, modify, terminate, permit to lapse, create or incur any Lien (other than a Permitted Lien) on, or otherwise fail to take any action necessary to maintain, enforce or protect any material Owned Intellectual Property;

 

(i)           (i) commence, discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to any pending or threatened Action that would reasonably be expected to (A) result in any material restriction on the Company or any of its Subsidiaries, (B) result in a payment of greater than $500,000 individually or $3,000,000 in the aggregate or (C) involve any equitable remedies or admission of wrongdoing, or (ii) other than in the Ordinary Course of Business, waive, release or assign any claims or rights of the Company and any of its Subsidiaries;

 

(j)           sell, lease, license, sublicense, exchange, mortgage, pledge, create any Liens (other than Permitted Liens) on, transfer or otherwise dispose of, or agree to sell, lease, license, sublicense, exchange, mortgage, pledge, transfer or otherwise create any Liens (other than Permitted Liens) on or dispose of, any material tangible or intangible assets, properties, securities, or interests of the Company or any of its Subsidiaries (other than Intellectual Property, which is addressed in Section 7.01(i));

 

(k)          merge or consolidate itself or any of its Subsidiaries with any Person, restructure, reorganize or completely or partially liquidate or dissolve, or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of, the Company or any of its Subsidiaries;

 

(l)           make any material change in financial accounting methods or principles of the Company and its Subsidiaries, except insofar as may have been required by a change in GAAP or Applicable Law or to obtain compliance with PCAOB auditing standards;

 

(m)         permit any insurance policies listed in Section 5.18 of the Company Disclosure Schedule to be canceled or terminated in a manner that would be adverse or detrimental to the Company or its business, other than if, in connection with such cancellation or termination, a replacement policy having comparable deductions and providing coverage substantially similar to the coverage under the lapsed policy for substantially similar premiums or less is in full force and effect;

 

(n)          except for capital expenditures in the Company’s capital expenditure budgets for fiscal year 2021 and fiscal year 2022 (true and complete copies of which has been provided to DSAC prior to the date of this Agreement), make any commitments for capital expenditures that would reasonably be expected to require payments during fiscal year 2021 or fiscal year 2022 in excess of $2,000,000 in the aggregate;

 

(o)          fail to maintain or timely obtain, or materially amend or modify, any Permit that is material to the ongoing operations of the Company and its Subsidiaries;

 

(p)          take any action that would constitute or result in Leakage (other than Permitted Leakage); or

 

(q)          enter into any agreement to do any action prohibited under this Section 7.01.

 

Nothing contained in this Section 7.01 shall give to DSAC, directly or indirectly, the right to control or direct the ordinary course of business operations of the Company prior to the Closing Date. Prior to the Closing Date, each of DSAC and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Applicable Law. For the avoidance of doubt, “current facts and circumstances” within the definition of Ordinary Course of Business shall, for the purposes of this Section 7.01, include any actions taken as may be commercially reasonable in response to the COVID-19 pandemic and reasonably consistent with (x) the actions taken by the Acquired Companies in response to the COVID-19 pandemic prior to the date hereof, (y) the applicable health and safety policies, procedures and protocols in effect at such date recommended by any Governmental Entity, the World Health Organization or any similar organization or (z) the then-current operations of similarly situated Persons operating in the same industries, markets or geographies in which the Acquired Companies operate.

 

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Section 7.02.          Inspection. The Company shall, and shall cause its Subsidiaries to, afford to DSAC and its officers, employees, accountants, counsel and other representatives reasonable access during the Interim Period, during normal business hours, to all of their respective properties, books and records (including, but not limited to, Tax Returns and work papers of, and correspondence with, the Company’s independent auditors), Contracts, commitments, customers, vendors and other business relations and officers and employees of the Company and its Subsidiaries, and shall furnish such representatives with all financial and operating data and other information concerning the affairs of the Company and its Subsidiaries as such representatives may reasonably request in connection with the consummation of this Agreement or the transactions contemplated hereby; provided that no investigation pursuant to this Section 7.02 (or any investigation prior to the date hereof) shall affect any representation or warranty given by the Company or the DSAC Parties; provided, further, that any investigation pursuant to this Section 7.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company during normal business hours under the supervision of appropriate personnel of the Company.

 

Section 7.03.          Termination of Certain Agreements. Prior to the Closing, the Company shall take all actions necessary to cause the Affiliate Transactions set forth on Section 7.03 of the Company Disclosure Schedule to be terminated effective prior to or as of the Closing such that such Affiliate Transactions are of no further force and effect following the Closing, and there shall be no further obligations or continuing liabilities of any of the relevant parties thereunder or in connection therewith following the Closing (other than those that by the terms of such Affiliate Transactions expressly survive the termination of such Affiliate Transactions). Prior to the Closing, the Company shall deliver to DSAC written evidence reasonably satisfactory to DSAC of such terminations.

 

Section 7.04.          Trust Account Waiver. The Company acknowledges that DSAC is a blank check company with the powers and privileges to effect a Business Combination. The Company further acknowledges that, as described in the prospectus dated October 28, 2020 (the “Prospectus”), substantially all of DSAC’s assets consist of the cash proceeds of DSAC’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of DSAC, certain of its public shareholders and the underwriters of DSAC’s initial public offering. The Company acknowledges that, except with respect to interest earned on the funds held in the Trust Account that may be released to DSAC 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 DSAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agree not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, contracts or agreements with DSAC or any other Person; provided, however, that nothing in this Section 7.04 shall amend, limit, alter, change, supersede or otherwise modify the right of the Company to (i) bring any action or actions for specific performance, injunctive and/or other equitable relief or (ii) bring or seek a claim for Damages against DSAC, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account to holders of DSAC Ordinary Shares in accordance with the DSAC Governing Document and the Trust Agreement).

 

Section 7.05.          Written Consent. The Company shall expend commercially reasonable efforts to obtain a duly executed counterpart to the Company Shareholder Approval from each Company Shareholder as expeditiously as possible after the effectiveness of the Registration Statement, and the Company shall promptly deliver such executed counterparts to DSAC. The materials submitted to such Company Shareholders in connection with soliciting counterparts to the Company Shareholder Approval shall include the unanimous recommendation of the Company Board that such Company Shareholders vote their Company Shares in favor of the adoption of this Agreement, the Merger and the transactions contemplated hereby.

 

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Section 7.06.      280G Approval. To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive any payments or benefits that would constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then, the Company will: (a) at least four (4) Business Days prior to the Closing Date, solicit from each such “disqualified individual” a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that any remaining payments and/or benefits shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder); and (b) at least one (1) Business Day prior to the Closing Date, with respect to each individual who signs the waiver described in clause (a), submit to a vote of holders of the equity interests of the Company entitled to vote on such matters, in the manner required under Section 280G(b)(5) of the Code and the regulations promulgated thereunder, along with adequate disclosure intended to satisfy such requirements (including Q&A 7 of Section 1.280G-1 of such regulations), the right of any such “disqualified individual” to receive the Waived 280G Benefits. At least five (5) days prior to soliciting such waivers and approval, the Company shall provide drafts of such waivers and approval materials and the calculations and related back-up documentation to DSAC for its review and comment, and the Company shall incorporate changes reasonably requested by DSAC.  To the extent applicable, prior to the Closing Date, the Company shall deliver to DSAC evidence that a vote of the stockholders of the Company was solicited in accordance with the foregoing and whether the requisite number of votes of the stockholders of the Company was obtained with respect to the Waived 280G Benefits or that the vote did not pass and the Waived 280G Benefits will not be paid or retained.

 

Section 7.07.      Potentially Continuing Convertible Notes.  The Company shall expend commercially reasonable efforts to procure the agreement of holders of the Potentially Continuing Convertible Notes to the conversion thereof at or before the Closing; provided, however, that DSAC acknowledges and agrees that receipt of such agreements is not a condition to the consummation of the transactions contemplated by this Agreement.

 

Article 8
Covenants of DSAC

 

Section 8.01.      Conduct of Business. During the Interim Period, except as set forth on Section 8.01 of the DSAC Disclosure Schedule, as contemplated by this Agreement (including with respect to the Domestication), as required by Applicable Law or as consented to by the Company in writing, DSAC shall not, and DSAC shall cause the other DSAC Parties not to:

 

(a)            change, amend or propose to amend (i) the DSAC Governing Document or the certificate of incorporation, bylaws, memorandum and articles of association or other organizational documents of any DSAC Party or (ii) the Trust Agreement or any other agreement related to the Trust Agreement;

 

(b)            directly or indirectly adjust, split, combine, subdivide, issue, pledge, deliver, award, grant redeem, purchase or otherwise acquire or sell, or authorize the issuance, pledge, delivery, award, grant or sale (including the grant of any encumbrances) of, any Equity Securities of any DSAC Party, other than (i) in connection with the exercise of any DSAC Warrants outstanding on the date hereof, (ii) any redemption made in connection with the DSAC Shareholder Redemption Right, (iii) in connection with the PIPE Financing, or (iv) as otherwise required by the DSAC Governing Document in order to consummate the transactions contemplated hereby;

 

(c)            merge or consolidate itself with any Person, restructure, reorganize or completely or partially liquidate or dissolve, or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of, the DSAC Parties (other than the Merger and the Domestication);

 

(d)            make, authorize or declare any dividend (whether in the form of cash or other property) or distribution;

 

(e)            enter into any material Contract or, other than in the ordinary course of business, (i) modify, voluntarily terminate, permit to lapse, waive, or fail to enforce any material right or remedy under any material Contract or (ii) materially amend, extend or renew any material Contract;

 

(f)            hire any employees or adopt any benefit plans;

 

(g)            acquire (whether by merger or consolidation or the purchase of a substantial portion of the equity in or assets of or otherwise) any other Person;

 

(h)            incur any Indebtedness;

 

(i)            make any loans, advances or capital contributions to, or investments in, any other Person;

 

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(j)            (i) fail to timely pay all Taxes that become due and payable, (ii) make or change or revoke any material Tax election, (iii) adopt or change any material Tax accounting method except as required by Law, (iv) settle or compromise any material Tax liability, (v) enter into any closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law), (vi) enter into any Tax sharing or similar agreement, (vii) enter into any material agreement with a Taxing Authority with respect to Taxes, (viii) consent to any extension or waiver of the statute of limitations regarding any material amount of Taxes, (ix) amend any Tax Return in any material respect unless required by Applicable Law, or (x) surrender any right to claim a material refund of Tax;

 

(k)            (i) commence, discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to any pending or threatened Action that would reasonably be expected to (A) result in any material restriction on Newco or the Surviving Corporation, (B) result in a payment of greater than $50,000 individually or in the aggregate or (C) involve any equitable remedies or admission of wrongdoing, or (ii) waive, release or assign any claims or rights of the DSAC Parties;

 

(l)            sell, lease, license, sublicense, exchange, mortgage, pledge, create any Liens (other than Permitted Liens) on, transfer or otherwise dispose of, or agree to sell, lease, license, sublicense, exchange, mortgage, pledge, transfer or otherwise create any Liens (other than Permitted Liens) on or dispose of, any material tangible or intangible assets, properties, securities, or interests of the DSAC Parties;

 

(m)            make any change in financial accounting methods, principles or practices of the DSAC Parties, except insofar as may have been required by a change in GAAP or Applicable Law;

 

(n)            pay, or make any commitments for, capital expenditures; or

 

(o)            enter into any agreement to do any action prohibited under this Section 8.01.

 

Nothing contained in this Section 8.01 shall give to the Company, directly or indirectly, the right to control or direct the ordinary course of business operations of the DSAC Parties prior to the Closing Date. Prior to the Closing Date, each of DSAC and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Applicable Law.

 

Section 8.02.      NASDAQ Listing. From the date hereof through the Closing, DSAC shall use reasonable best efforts to ensure that DSAC remains listed as a public company, and that DSAC Ordinary Shares remain listed on the NASDAQ. DSAC shall use reasonable best efforts to ensure that Newco is listed as a public company, and that shares of Newco Common Stock (including the Earnout Shares) are listed on the NASDAQ, in each case, as of the Effective Time.

 

Section 8.03.      PIPE Subscription Agreements. Unless otherwise approved in writing by the Company, DSAC shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacements or terminations of, the PIPE Subscription Agreements in any manner other than to reflect any permitted assignments or transfers of the PIPE Subscription Agreements by the applicable PIPE Investors pursuant to the PIPE Subscription Agreements. DSAC shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the PIPE Subscription Agreements on the terms and conditions described therein, including using its reasonable best efforts to enforce its rights under the Subscription Agreements to cause the PIPE Investors to pay to (or as directed by) DSAC the applicable purchase price under each PIPE Investor’s applicable Subscription Agreement in accordance with its terms. Without limiting the generality of the foregoing, DSAC shall give the Company prompt (under the circumstances) written notice: (A) of any amendment to any PIPE Subscription Agreement (other than as a result of any assignments or transfers contemplated therein or otherwise permitted thereby); (B) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any PIPE Subscription Agreement known to DSAC; (C) of the receipt of any written notice or other written communication from any party to any PIPE Subscription Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any PIPE Subscription Agreement or any provisions of any PIPE Subscription Agreement; and (D) of any underfunding of any amount under any PIPE Subscription Agreement.

 

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Section 8.04.      Backstop Agreement. Unless otherwise approved in writing by the Company, DSAC shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacement or termination of, the Backstop Agreement in any manner adverse to the Company. DSAC shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Backstop Agreement on the terms and conditions described therein, including using its reasonable best efforts to enforce its rights under the Backstop Agreement to cause the Backstop Parties to pay to (or as directed by) DSAC the applicable purchase price under the Backstop Agreement in accordance with its terms. Without limiting the generality of the foregoing, DSAC shall give the Company prompt (under the circumstances) written notice: (A) of any amendment to the Backstop Agreement; (B) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to the Backstop Agreement known to DSAC; (C) of the receipt of any written notice or other written communication from any party to the Backstop Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to the Backstop Agreement or any provisions of the Backstop Agreement; and (D) of any underfunding of any amount under the Backstop Agreement.

 

Section 8.05.      Section 16 of the Exchange Act. Prior to the Closing, the DSAC board of directors, or an appropriate committee thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC relating to Rule 16b-3(d) under the Exchange Act, such that the acquisitions of Newco Common Stock pursuant to this Agreement by any officer or director of the Company who is expected to become a “covered person” of DSAC for purposes of Section 16 of the Exchange Act (“Section 16”) shall be exempt acquisitions for purposes of Section 16.

 

Section 8.06.      Qualification as an Emerging Growth Company. DSAC shall, at all times during the period from the date hereof until the occurrence of the Closing: (a) take all actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012; and (b) not take any action that would cause DSAC to not qualify as an “emerging growth company” within the meaning of such Act.

 

Article 9
Joint Covenants

 

Section 9.01.      Efforts to Consummate.

 

(a)            Subject to the terms and conditions herein provided, each Party shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under Applicable Laws and regulations to consummate and make effective as promptly as practicable the transactions contemplated hereby (including (x) the satisfaction, but not waiver, of the closing conditions set forth in Article 10, (y) obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers and permits necessary or advisable to be obtained from any third party or any Governmental Authorities and the expiration or termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the transactions contemplated hereby, and (z) obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ). Subject to Section 12.06, the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including HSR Act filing fees and any filing fees in connection with any other Antitrust Law, and any fees associated with obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ, shall be paid by DSAC (if to be paid prior to the Closing) or by Newco (if to be paid at or after the Closing). Each Party shall make or cause to be made (and not withdraw) an appropriate filing, if necessary, pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable after the date hereof. The Parties shall request early termination of the waiting period in any filings submitted under the HSR Act and shall use commercially reasonable efforts to supply as promptly as practicable to the appropriate Governmental Authorities additional information and documentary material that may be requested pursuant to the HSR Act or any other Antitrust Law. (The foregoing notwithstanding, nothing herein shall require the Company to incur any liability or expenses (other than Company Transaction Expenses of the type set forth in clause (i) of the definition thereof, and any other de minimis costs and expenses) or DSAC to subject itself or its business to any imposition of any limitation on the ability to conduct its business or to own or exercise control of its assets or properties.)

 

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(b)            Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under Applicable Law and obtaining approval for listing the Newco Common Stock issued pursuant to this Agreement on the NASDAQ.

 

(c)            Each Party shall, in connection with the Agreement and the transactions contemplated hereby, to the extent permitted by Applicable Law: (i) promptly notify the other Parties of, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other parties hereto of) any material substantive communications from or with any Governmental Authority, (ii) cooperate in connection with any proposed substantive written or oral communication with any Governmental Authority and permit the other Parties to review and discuss in advance, and consider in good faith the view of the other Parties in connection with, any proposed substantive written or oral communication with any Governmental Authority, (iii) not participate in any substantive meeting or have any substantive communication with any Governmental Authority unless it has given the other Parties a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Authority, gives the other Parties or their outside counsel the opportunity to attend and participate therein, (iv) furnish such other Parties’ outside legal counsel with copies of all filings and communications between it and any such Governmental Authority and (v) furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with its preparation of necessary submissions of information to any such Governmental Authority; provided that materials required to be provided pursuant to this Section 9.01(c) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (B) to remove references to privileged information.

 

Section 9.02.      Indemnification and Insurance.

 

(a)            All rights held by each present and former director and officer of the Company and any of its Subsidiaries to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at, or after the Effective Time, provided in the respective certificate of incorporation, certificate of formation, operating agreement, bylaws or other organizational documents of the Company or such Subsidiary in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect. Without limiting the foregoing, the Company shall not, for a period of not less than six years from the Effective Time, amend, repeal or otherwise modify the provisions in its certificate of incorporation, bylaws and other organizational documents concerning the indemnification and exculpation (including provisions relating to expense advancement) of the Company’s and its Subsidiaries’ former and current officers, directors, employees, and agents in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Applicable Law.

 

(b)            The Company shall cause coverage to be extended under its current directors’ and officers’ liability insurance by obtaining a six year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time or secure comparable coverage under the current directors’ and officers’ liability insurance of Newco. If any claim is asserted or made within such six year period, the provisions of this Section 9.02 shall be continued in respect of such claim until the final disposition thereof.

 

(c)            DSAC shall cause coverage to be extended under its current directors’ and officers’ liability insurance by obtaining a six year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Effective Time. If any claim is asserted or made within such six year period, the provisions of this Section 9.02 shall be continued in respect of such claim until the final disposition thereof.

 

(d)            Notwithstanding anything contained in this Agreement to the contrary, this Section 9.02 shall survive the consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of the Surviving Corporation. In the event that the Surviving Corporation or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Surviving Corporation shall succeed to the obligations set forth in this Section 9.02.

 

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Section 9.03.      Tax Matters.

 

(a)            The Parties intend that for U.S. federal (and, as applicable, state and local) income Tax purposes: (i) the Domestication be treated as a reorganization within the meaning of Section 368(a)(1)(F) of the Code and that this Agreement be adopted as a “plan of reorganization” for purposes of Section 368 of the Code and the Treasury Regulations promulgated thereunder with respect thereto and (ii) the Merger be treated as a reorganization within the meaning of Section 368(a) of the Code and that this Agreement be adopted as a “plan of reorganization” for purposes of Section 368 of the Code and the Treasury Regulations promulgated thereunder with respect thereto (the “Intended Tax Treatment”). The Parties will not take any action that could reasonably be expected to prevent, impair or impede the Intended Tax Treatment and will not take any inconsistent position for Tax purposes unless otherwise required by a “determination” within the meaning of Section 1313 of the Code. This Agreement is intended to constitute and hereby is adopted as a “plan of reorganization” with respect to the Domestication and with respect to the Merger within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations thereunder.

 

(b)            In the event that in connection with the preparation and filing of the Registration Statement and/or the Proxy Statement the SEC requests or requires tax opinions, each Party shall execute and deliver customary tax representation letters to counsel dated and executed as of the date the Registration Statement shall have been declared effective by the SEC and such other date(s) as determined reasonably necessary by counsel in connection with the preparation and filing of the Registration Statement and/or the Proxy Statement.

 

(c)            Newco will use commercially reasonable efforts to provide the pre-Closing equityholders of DSAC information that is reasonably required to (i) determine the amount that is required to be taken into income by such pre-Closing equityholders in connection with Treasury Regulations Section 1.367(b)-3 as a result of the Domestication; (ii) make the election contemplated by Treasury Regulations Section 1.367(b)-3(c)(3); and (iii) make a timely and valid election as contemplated by Section 1295 of the Code (and the Treasury Regulations promulgated thereunder) with respect to DSAC for each taxable year that DSAC is considered a passive foreign investment company (including through provision of the Annual Information Statement described in Treasury Regulations Section 1.1295-1(g)). Newco is permitted to satisfy its obligations to provide any information pursuant to this Section 9.03(c) by posting it on its website.

 

(d)            All Transfer Taxes incurred by DSAC, Merger Sub and the Company in connection with this Agreement shall be borne by Newco and paid when due. Newco shall timely file all necessary Tax Returns and other documentation with respect to all such Tax Returns and, if required by Applicable Law, DSAC, Merger Sub and the Company will join in the execution of any such Tax Return or documentation.

 

Section 9.04.      Proxy Statement; Registration Statement.

 

(a)            As promptly as reasonably practicable after the date of this Agreement, DSAC and the Company shall prepare, and DSAC shall file with the SEC, (i) a preliminary proxy statement in connection with the Merger to be filed as part of the Registration Statement and sent to the Pre-Closing DSAC Holders relating to the DSAC Extraordinary General Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) for the purposes of the approval of the Transaction Proposals and (ii) the Registration Statement, in which the Proxy Statement will be included as a prospectus. DSAC and the Company shall use commercially reasonable efforts to cooperate, and cause their respective Subsidiaries, as applicable, to reasonably cooperate, with each other and their respective representatives, advisers and counsel in the preparation of the Proxy Statement and the Registration Statement. DSAC shall use its commercially reasonable efforts to cause the Proxy Statement and the Registration Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof and to keep the Registration Statement effective as long as is necessary to consummate the Merger.

 

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(b)            DSAC shall, as promptly as practicable, notify the Company of any correspondence with the SEC relating to the Proxy Statement, the receipt of any oral or written comments from the SEC relating to the Proxy Statement, and any request by the SEC for any amendment to the Proxy Statement or for additional information. DSAC shall cooperate and provide the Company with a reasonable opportunity to review and comment on the Proxy Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC and include all comments reasonably proposed by the Company in respect of such documents and responses prior to filing such with or sending such to the SEC, and, to the extent practicable, the Parties will provide each other with copies of all such filings made and correspondence with the SEC. DSAC shall use reasonable best efforts to obtain all necessary state securities law or “blue sky” permits and approvals required to carry out the Merger, and the Company shall promptly furnish all information concerning the Company as may be reasonably requested in connection with any such action. Each of DSAC and the Company shall use reasonable best efforts to promptly furnish to each other party all information concerning itself, its Subsidiaries, officers, directors, managers, members and stockholders, as applicable, and such other matters, in each case, as may be reasonably necessary in connection with and for inclusion in the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of DSAC and the Company or their respective Subsidiaries, as applicable, to the SEC or the NASDAQ in connection with the Merger (including any amendment or supplement to the Proxy Statement or the Registration Statement) (collectively, the “Offer Documents”). DSAC will advise the Company, promptly (under the circumstances) after DSAC receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of the DSAC Ordinary Shares or the Newco Common Stock for offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement, the Registration Statement or the other Offer Documents or for additional information.

 

(c)            Without limiting the generality of (b), the Company shall promptly furnish to DSAC for inclusion in the Proxy Statement and the Registration Statement audited financial statements of the Company and its Subsidiaries as of, and for the twelve months ended, December 31, 2020 and December 31, 2019, in each case prepared in accordance with GAAP and Regulation S-X and audited in accordance with PCAOB auditing standards by a PCAOB- qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act (the “Audited Financial Statements”), together with auditor’s reports and consents to use such financial statements and reports.

 

(d)            Each of DSAC and the Company shall use commercially reasonable efforts to ensure that none of the information related to it or any of its Affiliates, supplied by or on its behalf for inclusion or incorporation by reference in (i) either Proxy Statement will, as of the date it is first mailed to the Pre-Closing DSAC Holders, or at the time of the DSAC Extraordinary General Meeting, or (ii) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended, at the time it becomes effective under the Securities Act and at the Effective Time, in either case, 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.

 

(e)            If, at any time prior to the Effective Time, any information relating to DSAC, the Company, or any of their respective Subsidiaries, Affiliates, directors or officers, as applicable, or the Holders is discovered by any of DSAC or the Company and is required to be set forth in an amendment or supplement to either Proxy Statement or the Registration Statement, so that such Proxy Statement or the Registration Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information shall, subject to the other provisions of this Section 9.04, be promptly filed by DSAC with the SEC and, to the extent required by Applicable Law, disseminated to the Pre-Closing DSAC Holders.

 

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Section 9.05.      DSAC Shareholder Approval.

 

(a)            DSAC shall take, in accordance with Applicable Law, the NASDAQ rules, and the DSAC Governing Document, all action necessary to call, hold, and convene an extraordinary general meeting of holders of DSAC Ordinary Shares (including any permitted adjournment or postponement, the “DSAC Extraordinary General Meeting”) to consider and vote upon the Transaction Proposals and to provide the DSAC Shareholders with the opportunity to effect a DSAC Share Redemption in connection therewith as promptly as reasonably practicable (and in any event within thirty days) after the date that the Registration Statement is declared effective under the Securities Act. DSAC shall, through the DSAC board of directors, recommend to the DSAC Shareholders (including in the Proxy Statement) and solicit approval of (i) the adoption and approval of this Agreement and the transactions contemplated by this Agreement, including the Merger, (ii) the Domestication, (iii) in connection with the Domestication, the amendment of the DSAC Governing Document and approval of the Newco Certificate of Incorporation and Newco Bylaws, (iv) the issuance of (A) the Newco Common Stock issuable in connection with the Merger and (B) the Newco Common Stock issuable in connection with the PIPE Financing, (v) the adoption of the Incentive Equity Plan, (vi) the election of the directors constituting the Newco Board, (vii) the adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto, (viii) the adoption and approval of any other proposals as reasonably agreed by DSAC and the Company to be necessary or appropriate in connection with the Merger and (ix) adjournment of the DSAC Extraordinary General 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 (i) through (ix), together, the “Transaction Proposals”). DSAC shall use its reasonable best efforts to obtain the approval of the Transaction Proposals at the DSAC Extraordinary General Meeting, including by soliciting proxies as promptly as practicable in accordance with Applicable Law for the purpose of seeking the approval of the Transaction Proposals.

 

(b)            Notwithstanding anything to the contrary contained in this Agreement, once the DSAC Extraordinary General Meeting to consider and vote upon the Transaction Proposals has been called and noticed, DSAC will not adjourn the DSAC Extraordinary General Meeting without the consent of the Company, other than (i) for the absence of a quorum, in which event DSAC shall adjourn the meeting up to three times for up to ten Business Days each time, (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure that DSAC has determined in good faith, after consultation with its outside legal advisors, is necessary under Applicable Law, and for such supplemental or amended disclosure to be disseminated to and reviewed by the holders of DSAC Ordinary Shares prior to the DSAC Extraordinary General Meeting, or (iii) a one-time adjournment of up to ten Business Days to solicit additional proxies from holders of DSAC Ordinary Shares to the extent DSAC has determined that such adjournment is reasonably necessary to obtain the approval of the Transaction Proposals.

 

Section 9.06.      Newco Board of Directors. Subject to Section 9.01(b), the Parties shall take all necessary action to cause the Board of Directors of Newco (the “Newco Board”) as of immediately following the Closing to consist of eleven directors, of whom (i) one shall be the Chief Executive Officer of the Company, (ii) two shall be designated by Sponsor as listed in Section 9.06 of the Company Disclosure Schedule (the “Sponsor Designees”) and (iii) eight individuals shall be designated by the Company no later than 14 days prior to the effectiveness of the Registration Statement (the “Company Designees”); provided that if CFIUS Approval has not been received as of the Closing, then the appointment of the Sponsor Designees shall be effective immediately following the receipt of CFIUS Approval and the Newco Board shall consist of nine directors until that time. Each Company Designee shall meet the director qualification and eligibility criteria mutually agreed upon by DSAC and the Company, and a number of Company Designees shall meet a standard of independence mutually agreed upon by DSAC and the Company such that a majority of the directors as of immediately following the Closing shall qualify as independent directors. The Company Designees, the Chief Executive Officer of the Company and the Sponsor Designees shall be assigned to classes of the Newco Board as set forth on Section 9.06 of the Company Disclosure Schedule.

 

Section 9.07.      Trust Account. Upon satisfaction or waiver of the conditions set forth in Article 10 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice DSAC shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with, subject to and pursuant to the Trust Agreement and the DSAC Governing Document, (a) at the Closing, (i) DSAC shall cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) shall cause the Trustee to (A) pay as and when due all amounts payable for DSAC Share Redemptions and (B) pay all amounts then available in the Trust Account to, or at the direction of, Newco in accordance with this Agreement and the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

 

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Section 9.08.      Form 8-K Filings. DSAC and the Company shall mutually agree upon and issue a press release announcing the effectiveness of this Agreement (the “Signing Press Release”). DSAC and the Company shall cooperate in good faith with respect to the prompt preparation by DSAC of, and, as promptly as practicable after the effective date of this Agreement (but in any event within four Business Days thereafter), DSAC shall file with the SEC, a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement as of its effective date (the “Announcement 8-K”). Prior to the Closing, DSAC and the Company shall mutually agree upon and prepare the press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). Concurrently with or promptly after the Closing, DSAC shall issue the Closing Press Release. DSAC and the Company shall cooperate in good faith with respect to the preparation by the Company of, and, at least five days prior to the Closing, the Company shall prepare, a draft Form 8-K announcing the Closing, together with, or incorporating by reference, the required pro forma financial statements and the historical financial statements prepared by the Company and its accountant (the “Completion 8-K”). Concurrently with the Closing, or as soon as practicable (but in any event within four Business Days) thereafter, Newco shall file the Completion 8-K with the SEC.

 

Section 9.09.      Incentive Equity Plan. Prior to the effectiveness of the Registration Statement, DSAC shall approve and, subject to approval of the DSAC Shareholders, adopt, an incentive equity plan that provides for the grant of awards to employees and other service providers of Newco and its Subsidiaries with a total pool of awards of Newco Common Stock not exceeding 9% of the aggregate number of shares of Newco Common Stock outstanding at the Closing, on a fully diluted, as converted and as-exercised basis (with such total pool of awards to be inclusive of shares reserved for issuance upon the exercise of options to purchase shares of Newco Common Stock issued in the Merger in respect of vested Converted Options, the “Incentive Equity Plan”). The Incentive Equity Plan shall provide for an annual “evergreen” increase not more than 3% of the outstanding shares of Newco Common Stock for a period of five years following the Closing. The Incentive Equity Plan shall be in substantially the form set forth as Annex H hereto.

 

Section 9.10.      Employee Stock Purchase Plan. Prior to the effectiveness of the Registration Statement, DSAC and Newco shall approve and, subject to approval of the DSAC Shareholders, adopt, an employee stock purchase plan that provides for the reserve of Newco Common Stock for employees and other service providers of Newco and its Subsidiaries with a total pool of Newco Common Stock not exceeding 2% of the aggregate number of shares of Newco Common Stock outstanding at the Closing, on a fully diluted, as converted and as-exercised basis (the “Employee Stock Purchase Plan”). The Employee Stock Purchase Plan shall provide for an annual “evergreen” increase not more than 1% of the outstanding shares of Newco Common Stock for a period of five years following the Closing. The Employee Stock Purchase Plan shall be in substantially the form set forth as Annex I hereto.

 

Section 9.11.      No Shop. During the Interim Period, none of DSAC or Merger Sub, on the one hand, or the Company and its Subsidiaries, on the other hand, will, nor will they direct, authorize or permit their respective Representatives to, directly or indirectly (a) take any action to solicit, initiate or engage in discussions or negotiations with, or enter into any binding agreement with, any Person concerning, or which would reasonably be expected to lead to, an Acquisition Transaction, (b) in the case of DSAC, fail to include the DSAC Board Recommendation in (or remove the DSAC Board Recommendation from) the Registration Statement, or (c) withhold, withdraw, qualify, amend or modify (or publicly propose or announce any intention or desire to withhold, withdraw, qualify, amend or modify), in a manner adverse to the other Party, the approval of such Party’s governing body of this Agreement and/or any of the transactions contemplated hereby, or, in the case of DSAC, the DSAC Board Recommendation. Promptly upon receipt of an unsolicited proposal regarding an Acquisition Transaction, each of the DSAC Parties and the Company shall notify the other party thereof, which notice shall include a written summary of the material terms of such unsolicited proposal. Notwithstanding the foregoing, the Parties may respond to any unsolicited proposal regarding an Acquisition Transaction only by indicating that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Transaction. For the purposes hereof, “Acquisition Transaction” means, (i) with respect to the Company, any merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction (other than the transactions contemplated hereby and transactions with customers in the Ordinary Course of Business), in each case, involving the sale, lease, exchange or other disposition of properties or assets or Equity Securities of the Company or any of the Company’s Subsidiaries and (ii) with respect to DSAC, any transaction (other than the transactions contemplated hereby) involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving DSAC (or any Affiliate or Subsidiary of DSAC), on the one hand, and any party other than the Company or the Company Shareholders, on the other hand.

 

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Section 9.12.      Notification of Certain Matters. Each of the Company and the DSAC Parties shall give prompt notice to the other Party of: (a) any Action or investigation that would have been required to be disclosed to the other Party under this Agreement if such Party had knowledge of it as of the date hereof; (b) the occurrence or non-occurrence of any event whose occurrence or non- occurrence, as the case may be, could reasonably be expected to cause any condition set forth in Section 10.02 or Section 10.03 not to be satisfied at any time from the date of this Agreement to the Effective Time; (c) any notice or other communication from any third Person alleging that the consent of such third Person is or may be required in connection with the Merger or the other transactions contemplated by this Agreement; (d) without limiting Section 9.01, any regulatory notice or report from a Governmental Authority in respect of the transactions contemplated by this Agreement; and (e) in the case of the Company, any information or knowledge obtained by the Company or any of its Subsidiaries that could reasonably be expected to materially affect the Company’s or any of its Subsidiaries’ current projections, forecasts or budgets or estimates of revenues, earnings or other measures of financial performance for any period.

 

Article 10
Conditions to Obligations

 

Section 10.01.      Conditions to Obligations of the DSAC Parties and the Company. The obligations of the DSAC Parties and the Company to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which may be waived (if permitted by Applicable Law) in writing by all of such parties:

 

(a)            HSR Act. All applicable waiting periods (and any extensions thereof) under the HSR Act shall have expired or been terminated.

 

(b)            NASDAQ Listing Requirements. The shares of Newco Common Stock contemplated to be listed pursuant to this Agreement  (including the Earnout Shares) shall have been listed on the NASDAQ and shall be eligible for continued listing on the NASDAQ immediately following the Closing (as if it were a new initial listing by an issuer that had never been listed prior to the Closing), subject only to official notice of issuance thereof and the requirement to have a sufficient number of round lot holders.

 

(c)            Applicable Law. There shall not be in force any Applicable Law or Governmental Order enjoining, prohibiting, making illegal, or preventing the consummation of the Merger.

 

(d)            DSAC Shareholder Approval. The DSAC Shareholder Approval shall have been obtained.

 

(e)            Company Shareholder Approval. The Company Shareholder Approval shall have been obtained.

 

(f)            Effectiveness of Registration Statement. The Registration Statement shall have become effective in accordance with the Securities Act, no stop order shall have been issued by the SEC with respect to the Registration Statement and no Action seeking such stop order shall have been threatened or initiated.

 

(g)            Net Tangible Assets. DSAC 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) remaining after the consummation of the PIPE Financing and the closing of the DSAC Share Redemption.

 

(h)            Domestication. The Domestication shall have been consummated.

 

(i)            Financial Statements. The Company shall have delivered to DSAC the financial statements required to be included in the Completion 8-K.

 

Section 10.02.      Conditions to Obligations of the DSAC Parties. The obligations of the DSAC Parties to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the DSAC Parties:

 

(a)            Representations and Warranties.

 

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(i)            Each of the representations and warranties of the Company contained in this Agreement (without giving effect to any materiality or “Company Material Adverse Effect” or similar qualifications therein), other than the representations and warranties set forth in Section 5.01, Section 5.02, Section 5.06, Section 5.09(a) and Section 5.25, shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time, except with respect to representations and warranties which speak as to another specified time, which representations and warranties shall be true and correct at and as of such time, except for, in each case, such failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

(ii)            The representations and warranties of the Company contained in Section 5.01(c) and Section 5.09(a) shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time.

 

(iii)            Each of the representations and warranties of the Company contained in Section 5.01(a), Section 5.01(b), Section 5.02, Section 5.06 and Section 5.25 (without giving effect to any materiality or “Company Material Adverse Effect” or similar qualifications therein), shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time (except to the extent that any such representation and warranty speaks expressly as of another specified time, in which case such representation and warranty shall be true and correct as of such time), except for, in each case, such failures to be true and correct as would not reasonably be expected to be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole.

 

(b)            Covenants. Each of the covenants, obligations and agreements of the Company hereunder to be performed as of or prior to the Closing shall have been performed in all material respects.

 

(c)            No Company Material Adverse Effect. From the date of this Agreement, there shall not have occurred a Company Material Adverse Effect that is continuing.

 

(d)            Closing Deliverables. DSAC shall have received the deliverables set forth in Section 4.08(a).

 

Section 10.03.      Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:

 

(a)            Representations and Warranties.

 

(i)            Each of the representations and warranties of the DSAC Parties contained in this Agreement (without giving effect to any materiality or “DSAC Material Adverse Effect” or similar qualifications therein), other than the representations and warranties set forth in Section 6.01, Section 6.02, Section 6.06, Section 6.12(b) and Section 6.22, shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time, except with respect to representations and warranties which speak as to another specified time, which representations and warranties shall be true and correct at and as of such time, except for, in each case, such failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a DSAC Material Adverse Effect.

 

(ii)            The representations and warranties of the DSAC Parties contained in Section 6.01(c), Section 6.02 and Section 6.12(b) shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time.

 

(iii)            Each of the representations and warranties of the DSAC Parties contained in Section 6.01(a), Section 6.01(b), Section 6.06 and Section 6.22 (without giving effect to any materiality or “DSAC Material Adverse Effect” or similar qualifications therein), 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, as if made at and as of such time (except to the extent that any such representation and warranty speaks expressly as of another specified time, in which case such representation and warranty shall be true and correct in all respects except for de minimis inaccuracies as of such time).

 

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(b)            Covenants. Each of the covenants, obligations and agreements of the DSAC Parties hereunder to be performed as of or prior to the Closing shall have been performed in all material respects.

 

(c)            No DSAC Material Adverse Effect. From the date of this Agreement, there shall not have occurred a DSAC Material Adverse Effect that is continuing.

 

(d)            Closing Deliverables. The Company shall have received the deliverables set forth in Section 4.08(b).

 

(e)            Minimum Cash. Available Cash shall be greater than or equal to Minimum Cash.

 

Section 10.04.      Satisfaction of Conditions. All conditions to the obligations of the Company and the DSAC Parties to proceed with the Closing under this Agreement will be deemed to have been fully and completely satisfied or waived for all purposes if the Closing occurs.

 

Article 11
Termination/Effectiveness

 

Section 11.01.      Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing:

 

(a)            by written consent of the Company and DSAC;

 

(b)            by either the Company or DSAC if the Closing shall not have occurred on or before the eight-month anniversary of the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 11.01(b) shall not be available to any Party whose breach of or failure to perform any provision of this Agreement results in the failure of the Closing to be consummated by such date;

 

(c)            by either the Company or DSAC if the consummation of the Merger is permanently enjoined, prohibited, deemed illegal or prevented by the terms of a final, non-appealable Governmental Order;

 

(d)            by DSAC if there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 10.02(a) or Section 10.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company, then, for a period of up to 30 days (or any shorter period of the time that remains between the date DSAC provides written notice of such violation or breach and the Termination Date) after receipt by the Company of notice from DSAC of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period; provided that DSAC shall not have the right to terminate this Agreement pursuant to this Section 11.01(d) if any DSAC Party is then in breach of its covenants, agreements, representations or warranties contained in this Agreement, which breach by such DSAC Party would cause any condition set forth in Section 10.03(a) or Section 10.03(b) not to be satisfied;

 

(e)            by the Company if there is any breach of any representation, warranty, covenant or agreement on the part of the DSAC Parties set forth in this Agreement, such that the conditions specified in Section 10.03(a) or Section 10.03(b) would not be satisfied at the Closing (a “Terminating DSAC Breach”), except that, if any such Terminating DSAC Breach is curable by any DSAC Party, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date) after receipt by DSAC of notice from the Company of such breach, but only as long as the DSAC Parties continue to use their reasonable best efforts to cure such Terminating DSAC Breach (the “DSAC Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating DSAC Breach is not cured within the DSAC Cure Period; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 11.01(e) if the Company is then in breach of its covenants, agreements, representations or warranties contained in this Agreement, which breach by the Company would cause any condition set forth in Section 10.02(a) or Section 10.02(b) not to be satisfied; or

 

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(f)            by either the Company or DSAC if  the DSAC Shareholder Approval is not obtained upon a vote duly taken thereon at the DSAC Extraordinary General Meeting (subject to any permitted adjournment or postponement of the DSAC Extraordinary General Meeting).

 

The party desiring to terminate this Agreement pursuant to this Section 11.01 (other Section 11.01(a)) shall give notice of such termination to each other Party.

 

Section 11.02.      Effect of Termination. Except as otherwise set forth in this Section 11.02, in the event of the termination of this Agreement pursuant to Section 11.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its respective Affiliates, officers, directors or stockholders, other than liability of any of the Parties for any (i)  willful and material breach of this Agreement by such Party occurring prior to such termination or (ii) fraud by such Party. The provisions of Section 7.04, this Section 11.02, and Sections 12.05, 12.06, 12.07, 12.08, 12.09, 12.10, 12.13, 12.15, 12.16,  12.17 and 12.18 (collectively, the “Surviving Provisions”) and the Confidentiality Agreement, and any defined term or other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall, in each case, survive any termination of this Agreement.

 

Article 12
Miscellaneous

 

Section 12.01.      Non-Survival of Representations, Warranties and Covenants. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument, document or certificate delivered pursuant to this Agreement shall survive the Effective Time, except for (i) those covenants and agreements contained herein and therein which by their terms expressly apply in whole or in part after the Effective Time and then only to such extent until such covenants and agreements have been fully performed, (ii) any covenants and agreements in the Surviving Provisions and (iii) any claim arising out of fraud.

 

Section 12.02.      Waiver. Any party to this Agreement may, at any time prior to the Closing, waive any of the terms or conditions of this Agreement. No waiver of any term or condition of this Agreement shall be valid unless the waiver is in writing and signed by the waiving party.

 

Section 12.03.      Notices. All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when delivered by email or other electronic transmission (in each case in this clause (d), solely if receipt is confirmed), addressed as follows:

 

(i)            If to any DSAC Party, to:

 

Duddell Street Acquisition Corp.

8/F Printing House, 6 Duddell Street, Hong Kong

Attention: Manoj Jain, Chief Executive Officer

Email: manoj.jain@masocapital.com

 

with copies (which shall not constitute notice) to:

 

Davis Polk & Wardwell LLP
The Hong Kong Club Building
3A Chater Road, Hong Kong
Attention: Miranda So

 

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James Lin

Sam Kelso
Email: miranda.so@davispolk.com

james.lin@davispolk.com

sam.kelso@davispolk.com

 

(ii)            If to the Company, to:

 

FiscalNote Holdings, Inc.
1201 Pennsylvania Avenue NW
Washington D.C. 20004
Attention: Josh Resnik,
SVP, General Counsel and Chief Content Officer
Email: josh.resnik@fiscalnote.com

 

with copies (which shall not constitute notice) to:

 

Paul Hastings LLP
875 15th Street, NW Suite 10
Washington D.C. 20005
Attention: Brandon Bortner

James Shea

Steve Camahort
Email: brandonbortner@paulhastings.com

jamesshea@paulhastings.com
stevecamahort@paulhastings.com

 

or to such other address or addresses as the parties may from time to time designate in writing by notice to the other parties in accordance with this Section 12.03.

 

Section 12.04.      Assignment. No party hereto shall assign, delegate or otherwise transfer (by operation of law or otherwise) any of its rights or obligations under this Agreement or any part hereof without the prior written consent of the other parties hereto. Any assignment in contravention of the preceding sentence shall be null and void ab initio. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

Section 12.05.      Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, however, that, notwithstanding the foregoing, (a) in the event the Closing occurs, the present and former officers and directors of the Company (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 9.02, (b) from and after the Effective Time, the Holders (and their successors, heirs and representatives) shall be intended third-party beneficiaries of, and may enforce, Article 3, Article 4, and this Section 12.05 and (c) the past, present and future directors, managers, officers, employees, incorporators, members, partners, equityholders, Affiliates, agents, attorneys, advisors and representatives of the parties and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, this Section 12.05 and Section 12.15.

 

Section 12.06.      Expenses. Except as otherwise provided herein, each Party shall bear its own expenses incurred in connection with this Agreement and the transactions herein contemplated whether or not such transactions shall be consummated, including all fees of its legal counsel, financial advisors and accountants; provided that, notwithstanding anything to the contrary, if the transactions herein contemplated are consummated, Newco shall pay or cause to be paid all (i) costs and expenses (including fees and expenses of counsel, auditors and financial and other advisors) incurred by the Company, its Subsidiaries and the DSAC Parties in connection with this Agreement and the transactions herein contemplated and (ii) deferred initial purchaser and underwriting compensation incurred by DSAC in connection with its initial public offering.

 

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Section 12.07.      Governing Law. This Agreement, and all Actions based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, Applicable Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Applicable Laws of another jurisdiction.

 

Section 12.08.      Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this Agreement or the transactions contemplated hereby shall be brought exclusively in the Delaware Chancery Court and any state appellate court therefrom within the State of Delaware (or, if the Delaware Chancery Court or such state appellate court shall be unavailable, any other court of the State of Delaware or, in the case of claims to which the federal courts have exclusive subject matter jurisdiction, any federal court of the United States of America sitting in the State of Delaware), and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Applicable Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 12.08. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.08.

 

Section 12.09.      Headings and Captions; Counterparts. The headings and captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any facsimile or .pdf copies hereof or signatures hereon shall, for all purposes, be deemed originals. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).

 

Section 12.10.      Entire Agreement. This Agreement (including, for the avoidance of doubt, any Annexes, Appendices, Exhibits or Schedules annexed hereto or referred to herein, including the Company Disclosure Schedule and the DSAC Disclosure Schedule), the Confidentiality Agreement, and the Ancillary Agreements constitute the entire agreement among the Parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the transactions contemplated by this Agreement exist between the parties hereto except as expressly set forth in this Agreement and the Ancillary Agreements.

 

Section 12.11.      Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by each of the Parties; provided that, after the DSAC Shareholder Approval has been obtained, there shall be no amendment or modification that would require the further approval of the Pre-Closing DSAC Holders under Applicable Law without such approval having first been obtained.

 

Section 12.12.      Publicity. Except (a) communications consistent with the final form of joint press release announcing the transactions contemplated by this Agreement and the investor presentation given to investors in connection with the announcement of the transactions contemplated by this Agreement or (b) as may be required by Applicable Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange, the DSAC Parties, on the one hand, and the Company, on the other hand, shall consult with each other, and provide meaningful opportunity for review and give due consideration to reasonable comment by the other, prior to issuing any press releases or other public written communications or otherwise making planned public statements with respect to the transactions contemplated by this Agreement and prior to making any filings with any third party and/or any Governmental Authority with respect thereto, and shall not make or issue any such press release or other public written communications or otherwise make any planned public statements without the prior written consent of the other Party.

 

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Section 12.13.      Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under any Applicable Law governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Applicable Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.

 

Section 12.14.      Disclosure Schedules. Each of the Company and DSAC have set forth information on their respective disclosure schedules in a section thereof that corresponds to the section of this Agreement to which it relates. A matter set forth in one section of a disclosure schedule need not be set forth in any other section so long as its relevance to such other section of the disclosure schedule or section of the Agreement is reasonably apparent. Any item of information, matter or document disclosed or referenced in, or attached to, the Company Disclosure Schedules or the DSAC Disclosure Schedules shall not (a) be used as a basis for interpreting the terms “material,” “Company Material Adverse Effect,” “DSAC Material Adverse Effect,” “material adverse effect” or other similar terms in this Agreement or to establish a standard of materiality, (b) represent a determination that such item or matter did not arise in the Ordinary Course of Business, (c) constitute, or be deemed to constitute, an admission of liability or obligation regarding such matter (other than with respect to any Section of the Company Disclosure Schedules or DSAC Disclosure Schedules, as applicable, referred to in any representation or warranty in this Agreement that expressly requires listing facts, circumstances or agreements in such section of the Company Disclosure Schedules or DSAC Disclosure Schedules, as applicable), or (d) notwithstanding the foregoing in subclause (c), constitute, or be deemed to constitute, an admission to any third party in any respect concerning such item or matter.

 

Section 12.15.      Enforcement.

 

(a)            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 its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that the Parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without proof of Damages or inadequacy of any remedy at Applicable Law, prior to the valid termination of this Agreement in accordance with Section 11.01, this being in addition to any other remedy to which they are entitled under this Agreement or Applicable Law.

 

(b)            Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this (b) shall not be required to provide any bond or other security in connection with any such injunction. The Parties acknowledge and agree that nothing contained in this Section 12.15 shall require any Party to institute any proceeding for (or limit any Party’s right to institute any proceeding for) specific performance under this Section 12.15 before exercising any termination right under Section 11.01 or pursuing Damages.

 

Section 12.16.      Non-Recourse. This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any named party to this Agreement and no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, DSAC or Merger Sub under this Agreement of or for any Action based on, arising out of, or related to this Agreement or the transactions contemplated hereby.

 

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Section 12.17.      DSAC Legal Representation. The Company hereby agrees on behalf of itself and its directors, members, partners, officers, employees and Affiliates, and each of their respective successors and assigns (all such parties, the “Company Waiving Parties”), that any legal counsel (including Davis Polk & Wardwell LLP) that represented DSAC, the Sponsor prior to the Closing may represent the Sponsor or any of the Sponsor’s Affiliates or the Sponsor’s or its Affiliates’ respective directors, members, partners, officers or employees, in each case, after the Closing in connection with any Action or obligation arising out of or relating to this Agreement, notwithstanding its representation of DSAC prior to the Closing, and each of DSAC and the Company on behalf of itself and the Company Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. Each of DSAC and the Company on behalf of itself and the Company Waiving Parties hereby further agrees that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including Davis Polk & Wardwell LLP) that represented the Sponsor or any of the Sponsor’s Affiliates or the Sponsor’s or its Affiliates’ respective directors, members, partners, officers or employees prior to the Closing in any way related to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence belongs to the Sponsor and may be controlled by the Sponsor, and shall not pass to or be claimed or controlled by Newco (after giving effect to the Closing), the Surviving Corporation or any other Company Waiving Party; provided that the Sponsor shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Company or any Company Waiving Party prior to the Closing with DSAC or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Surviving Corporation.

 

Section 12.18.      Company Legal Representation. DSAC hereby agrees on behalf of itself and its directors, members, partners, officers, employees and Affiliates, and each of their respective successors and assigns (all such parties, the “DSAC Waiving Parties”), that any legal counsel (including Paul Hastings LLP) that represented the Company or any of its Affiliates prior to the Closing may represent the Company Designee, or any of the Company’s Affiliates or the Company’s Affiliates’ respective directors, members, partners, officers or employees, in each case, after the Closing in connection with any Action or obligation arising out of or relating to this Agreement, notwithstanding its representation of the Company prior to the Closing, and each of DSAC and the Company on behalf of itself and the DSAC Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. Each of DSAC and the Company on behalf of itself and the DSAC Waiving Parties hereby further agrees that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including Paul Hastings LLP) that represented the Company or any of its Affiliates or any of the Company’s Affiliates’ respective directors, members, partners, officers or employees prior to the Closing in any way related to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence belongs to the Company Designee and may be controlled by the Company Designee, and shall not pass to or be claimed or controlled by Newco (after giving effect to the Closing), the Surviving Corporation or any other DSAC Waiving Party; provided that the Company Designee shall not waive such attorney/client privilege other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by DSAC or any DSAC Waiving Party prior to the Closing with the Company or the Company Designee (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Surviving Corporation.

 

[Signature pages follow.]

 

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IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date hereof.

 

  Duddell Street ACQUISITION CORP.

 

  By: /s/ Manoj Jain
      Name: Manoj Jain
      Title: Director

 

    GRASSROOTS MERGER SUB, INC.

 

    By: /s/ Manoj Jain
      Name: Manoj Jain
      Title: Director

 

 

 

  FiscalNote Holdings, INC.

 

    By: /s/ Timothy Hwang
      Name: Timothy Hwang
      Title: Chief Executive Officer

 

 

 

Exhibit 10.1

 

November 7, 2021

 

Duddell Street Acquisition Corp.

8/F Printing House

6 Duddell Street, Hong Kong

Attention: Manoj Jain, Chief Executive Officer

Email: manoj.jain@masocapital.com

 

FiscalNote Holdings, Inc.

1201 Pennsylvania Avenue NW

Washington D.C. 20004

Attention: Josh Resnik,

SVP, General Counsel and Chief Content Officer

Email: josh.resnik@fiscalnote.com

 

Re: Sponsor Letter Agreement

 

Ladies and Gentlemen:

 

Reference is made to that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated or otherwise modified from time to time, the “Merger Agreement”) by and among Duddell Street Acquisition Corp., a Cayman Islands exempted company (together with its successors, including the resulting Delaware corporation after the consummation of the Domestication, “DSAC”) and FiscalNote Holdings, Inc., a Delaware corporation (together with its successors, including the surviving corporation in the Merger, the “Company”). Any capitalized term used in this Sponsor Letter Agreement (this “Sponsor Letter Agreement”) but not defined herein will have the meaning ascribed thereto in the Merger Agreement.

 

As of the date hereof, (a) Duddell Street Holdings Limited, a Cayman Islands limited liability company (“Sponsor”) is the record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of 4,325,000 DSAC Class B Ordinary Shares and (b) Maso Capital Investments Limited, a Cayman Islands exempted company (“MCIL”), Blackwell Partners LLC - Series A, a Delaware limited liability company (“Blackwell”) and Star V Partners LLC, a Tennessee limited liability company (“Star” and collectively with MCIL and Blackwell, “Maso”) are the record and beneficial owners of 4,000,000 DSAC Class A Ordinary Shares (Maso, collectively with Sponsor, the “Sponsor Parties”) (the shares described in clauses (a) and (b) above, including the shares of Newco Common Stock into which such shares are converted as a result of the Domestication and the consummation of the transactions contemplated by the Merger Agreement, the “Sponsor Party Held Shares”) and Sponsor is the record and beneficial owner of 7,000,000 DSAC Common Warrants (the “Sponsor Warrants”). As of the date hereof, (i) Marc Holtzman (“Holtzman”) is the record and beneficial owner of 25,000 DSAC Class B Ordinary Shares and (ii) Bradford Allen (“Allen”) is the record and beneficial owner of 25,000 DSAC Class B Ordinary Shares, (Allen, collectively with Holtzman, the “Insiders”) (the shares described in clauses (i) and (ii) above, including the shares of Newco Common Stock into which such shares are converted as a result of the Domestication and the consummation of the transactions contemplated by the Merger Agreement, together with the Sponsor Party Held Shares, the “Founder Shares”).

 

 

 

 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Sponsor Parties, DSAC, the Company and the Insiders agree as follows:

 

1.            Redemption and Voting.

 

(a)            The Sponsor Parties and the Insiders agree that if DSAC seeks shareholder approval of the transactions contemplated by the Merger Agreement, the Sponsor Parties and the Insiders shall not redeem any Founder Shares or any other shares of common stock in DSAC owned by them in connection with shareholder approval of the transactions contemplated by the Merger Agreement.

 

(b)            Prior to the earlier of (x) date on which this Sponsor Letter Agreement is terminated in accordance with its terms and (y) the Closing (the “Voting Period”), at each meeting of the holders of DSAC Ordinary Shares (the “DSAC Shareholders”), and in each written consent or resolutions of any of the DSAC Shareholders in which the Sponsor Parties and the Insiders are entitled to vote or consent, each of the Sponsor Parties and the Insiders hereby unconditionally and irrevocably agree to be present for such meeting and vote (in person or by proxy), or consent to any action by written consent or resolution with respect to, as applicable, the Founder Shares held by them or other equity interests of DSAC entitled to vote over which they have voting power (i) in favor of, and to adopt and approve, as applicable, the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby, (ii) in favor of the initial nominees to the Newco Board pursuant to Section 9.06 of the Merger Agreement, (iii) in favor of the other matters set forth in the Merger Agreement to the extent required for DSAC to carry out its obligations thereunder, and (iv) in opposition to: (A) any Acquisition Transaction and any and all other proposals (1) that could reasonably be expected to delay or impair the ability of DSAC to consummate the transactions contemplated by the Merger Agreement or any Ancillary Agreement or (2) which are in competition with or materially inconsistent with the Merger Agreement or any Ancillary Agreement or (B) any other action or proposal involving DSAC or any of its Subsidiaries that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the transactions contemplated by the Merger Agreement or any Ancillary Agreement or would reasonably be expected to result in any of the conditions to DSAC’s obligations under the Merger Agreement not being fulfilled.

 

(c)            Each of the Sponsor Parties and the Insiders agree not to deposit, and to cause its Affiliates not to deposit, any Founder Shares held by them in a voting trust or subject any Founder Shares to any arrangement or agreement with respect to the voting of such Founder Shares, unless specifically requested to do so by the Company and DSAC in connection with the Merger Agreement, the Ancillary Agreements or the transactions contemplated thereby.

 

 

 

 

(d)            Each of the Sponsor Parties and the Insiders agree, except as contemplated by the Merger Agreement or any Ancillary Agreement, not to make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any equity interests of DSAC in connection with any vote or other action with respect to transactions contemplated by the Merger Agreement or any Ancillary Agreement, other than to recommend that the DSAC Shareholders vote in favor of the adoption of the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby (and any actions required in furtherance thereof and otherwise as expressly provided in this Section 1).

 

(e)            Each of the Sponsor Parties and the Insiders agree that during the Voting Period they shall not, without DSAC’s and the Company’s prior written consent, (i) make or attempt to make any Transfer of Founder Shares held by them except to an Affiliate which signs a joinder to this Agreement in a form reasonably acceptable to DSAC and the Company agreeing to be bound by this Section 1; (ii) grant any proxies or powers of attorney with respect to any or all of the Founder Shares held by them; or (iii) take any action with the intent to prevent, impede, interfere with or adversely affect any of the Sponsor Parties’ or the Insiders’ ability to perform its obligations under this Section 1. DSAC hereby agrees to reasonably cooperate with the Company in enforcing the transfer restrictions set forth in this Section 1.

 

(f)            In the event of any equity dividend or distribution, or any change in the equity interests of DSAC by reason of any equity dividend or distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like, the term “Founder Shares” shall be deemed to refer to and include the Founder Shares as well as all such equity dividends and distributions and any securities into which or for which any or all of the Founder Shares may be changed or exchanged or which are received in such transaction.

 

(g)            During the Voting Period, the Sponsor Parties and the Insiders agree to provide to DSAC, the Company and their respective Representatives any information regarding such parties or the Founder Shares held by them that is reasonably requested by DSAC, the Company or their respective Representatives and required in order for the Company and DSAC to comply with Sections 9.04 (Proxy Statement; Registration Statement) and 9.08 (Form 8-K Filings) of the Merger Agreement. To the extent required by Applicable Law, each Sponsor Party and Insider hereby authorizes the Company and DSAC to publish and disclose in any announcement or disclosure required by the SEC, NASDAQ or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), the Sponsor Parties’ and the Insiders’ identity and ownership of Founder Shares and the nature of the Sponsor Parties’ and the Insiders’ commitments and agreements under this Agreement, the Merger Agreement and any other Ancillary Agreements; provided that such publication or disclosure is made in compliance with the provisions of the Merger Agreement.

 

 

 

 

2.            Anti-Dilution Adjustment Waiver. Pursuant to Article 18 of the DSAC Governing Document, Sponsor and the Insiders, in their capacity as the holder of at least a majority of two-thirds of the outstanding DSAC Class B Ordinary Shares, hereby (but subject to the consummation of the Closing) waive the provisions of Article 13 of the DSAC Governing Document to have the DSAC Class B Ordinary Shares convert to DSAC Class A Ordinary Shares at a ratio of greater than one-for-one, and any rights to other anti-dilution protections with respect to the DSAC Class B Ordinary Shares (or the shares of Newco Class B Common Stock issued upon conversion thereof in connection with the Domestication), that may result from the issuance of shares of Newco Common Stock in connection with the transactions contemplated by the Merger Agreement or pursuant to the PIPE Financing. For the avoidance of doubt, the foregoing waiver does not waive Sponsor’s and the Insiders’ rights under Article 14 of the DSAC Governing Document, which provides that in no event may any Founder Shares convert into shares of Newco Common Stock at a ratio that is less than one-for-one.

 

3.            Working Capital Loans. The Prospectus permits loans made by Sponsor or an affiliate of Sponsor or any of DSAC’s officers or directors (each, a “Lender”), on such terms as to be determined by DSAC from time to time, to finance transaction costs in connection with an intended initial Business Combination (“Working Capital Loans”). DSAC and Sponsor, each on its own behalf and on behalf of its affiliates (including the officers and directors of DSAC), hereby agrees, and shall take such necessary or appropriate actions so as to ensure, that each and any Working Capital Loan shall be repaid solely in cash, at or prior to the Closing, and that no Working Capital Loan will be converted into warrants or other securities (derivative or otherwise) of DSAC.

 

4.            Board Designees.

 

(a)            From and after the Closing, provided that if CFIUS Approval has not been received as of the Closing, then this Section 4(a) and the appointment of the Sponsor Designees shall be effective immediately following the receipt of CFIUS Approval, Sponsor shall be entitled to nominate two director designees (the “Sponsor Designees”) to serve on the board of directors of Newco; provided that one of the Sponsor Designees shall satisfy the independence requirements under the NASDAQ listing rules as determined by the board of directors of Newco. Newco shall (i) include each Sponsor Designee in its slate of nominees for election to the board of directors of Newco at each annual or special meeting of the stockholders of Newco at which the seat held by such Sponsor Designee previously nominated by Sponsor is subject to election and (ii) recommend that Newco’s stockholders vote in favor of the election of such Sponsor Designee at such annual or special meeting of Newco’s stockholders and shall otherwise support such Sponsor Designee in a manner no less rigorous and favorable than the manner in which Newco supports its other nominees. Newco and the board of directors of Newco shall take all necessary actions to ensure that, at all times when a Sponsor Designee is eligible to be appointed or nominated hereunder, there are sufficient vacancies on the board of directors of Newco to permit such designation. For the avoidance of doubt, Sponsor shall not be required to comply with the advance notice provisions generally applicable to the nomination of directors by Newco so long as Sponsor provides reasonable advance notice to Newco of its Sponsor Designee prior to the mailing of the applicable proxy statement by Newco (provided that Newco shall provide reasonable advance notice to Sponsor of the expected mailing date of such proxy).

 

 

 

 

(b)            From and after the Closing, provided that if CFIUS Approval has not been received as of the Closing, then this Section 4(b) shall be effective immediately following the receipt of CFIUS Approval, and until such time as Sponsor and its Affiliates and their respective Permitted Transferees (as defined herein) cease to be the beneficial owners, directly or indirectly, of securities of Newco representing more than 2% of the combined voting power of Newco’s then outstanding voting securities, Sponsor shall vote in favor of the slate of nominees as proposed by Newco to its stockholders for election to the board of directors of Newco at each annual or special meeting of the stockholders of Newco convened for such purpose, including the initial composition of board of directors of Newco pursuant to Section 9.06 of the Merger Agreement.

 

5.            Restriction on Sale of Securities.

 

(a)            Subject to, and conditioned upon the occurrence and effective as of, the Effective Time, Section 7 of that certain letter agreement dated as of October 28, 2020 and executed by DSAC, Sponsor and the Insiders (as defined therein) (the “Insider Letter”) shall be amended and restated to provide in its entirety as follows: “[Reserved].”

 

(b)            Each of the Sponsor Parties and the Insiders hereby agrees and covenants that, such Person will not, (i) during the period from the Closing Date and ending on the date that is 180 days following after the Closing Date (the “Initial Lock-Up Period”), Transfer any of the equity interests of Newco beneficially owned by such Person immediately after the Effective Time (including shares of Newco Common Stock and Newco Common Warrants, and all shares of Newco Common Stock purchased by the Sponsor Parties in the PIPE Financing) (collectively, the “Restricted Securities”), and (ii) during the period from the date that is 180 days following after the Closing Date and ending on the first anniversary of the Closing Date (the “Subsequent Lock-Up Period” and together with the Initial Lock-Up Period, the “Lock-Up Period”), Transfer more than 50% of each type of the Restricted Securities (any Transfer prohibited under clause (i) or (ii) above, a “Prohibited Transfer”). If any Prohibited Transfer is made or attempted contrary to the provisions of this Sponsor Letter Agreement, such purported Prohibited Transfer shall be null and void ab initio, and Newco shall refuse to recognize any such purported transferee of such Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 5, Newco may impose stop-transfer instructions with respect to the Restricted Securities of each of the Sponsor Parties and the Insiders until the end of the Lock-Up Period, as well as include customary legends on any certificates for any of the Restricted Securities reflecting the restrictions under this Section 5.

 

 

 

 

(c)            Notwithstanding the provisions set forth in Section 5(b), the following Transfers of Restricted Securities during the Lock-Up Period are permitted: (i) to Newco’s officers or directors, or any Affiliates or family members of any of Newco’s officers or directors; (ii) in the case of an individual, Transfers by gift to a member of the individual’s immediate family, or to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, Transfers pursuant to a qualified domestic relations order; (v) in the case of an entity, Transfers to a stockholder, partner, member or Affiliate of such entity; (vi) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (vii) transactions relating to Newco Common Stock or other securities convertible into or exercisable or exchangeable for Newco Common Stock acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; (viii) the exercise of any options or warrants to purchase Newco Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); (ix) Transfers to Newco or the Surviving Corporation to satisfy tax withholding obligations pursuant to the Surviving Corporation’s equity incentive plans or arrangements; (x) the entry, by the applicable holder of the Restricted Securities that is party hereto, at any time after the Closing, of any trading plan providing for the sale of Newco Common Stock by such holder, which trading plan meets the requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934, as amended, provided, however, that such plan does not provide for, or permit, any Prohibited Transfer and no public announcement or filing is voluntarily made or required regarding such plan during the Initial Lock-Up Period; (xi) transactions in the event of Newco’s completion of a liquidation, merger, amalgamation, share exchange, reorganization or other similar transaction which results in all of the equityholders of the Surviving Company or Newco, as applicable, having the right to exchange their equity interests of Newco for cash, securities or other property; (xii) Transfers by a party hereto in sell-to-cover transactions to satisfy tax obligations of such party in connection with such party’s receipt of Newco Common Stock following the vesting and settlement of Company RSUs, if applicable; provided, however, that, in the case of the foregoing clauses (i) through (vi) and (xii), for such Transfer to be effective, the transferee must enter into a written agreement with Newco agreeing to be bound by this Section 5. The transferees with respect to any of the Transfers described in clauses (i) through (vi) of the preceding sentence are referred to herein as “Permitted Transferees.”

 

 

 

 

(d)            For purposes of this Agreement, “Transfer” means the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).

 

(e)            For purposes of this Section 5, “immediate family” shall mean a spouse, domestic partner, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the Shareholder; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.

 

6.            DSAC Transaction Expenses.

 

(a)            If the unpaid DSAC Transaction Expenses (excluding any DSAC Transaction Expenses to the extent attributable to (i) the PIPE Financing Amount exceeding $175 million or (ii) any shareholder litigation related to the transactions contemplated by the Merger Agreement) are in excess of thirty million dollars ($30,000,000) (the amount of such excess, the “Excess Expense Amount”) as of immediately prior to the Closing, Sponsor agrees to pay the Excess Expense Amount in cash by wire transfer of immediately available funds to DSAC concurrently with the Closing.

 

(b)            Immediately prior to the Closing, Sponsor shall cause to be delivered and surrendered for cancellation any stock certificates, warrants or any similar instruments or securities evidencing or representing the Sponsor Party Held Shares owned by Sponsor and/or Sponsor Warrants to be forfeited, terminated and cancelled pursuant to Section 6(a).

 

7.            This Sponsor Letter Agreement and the other agreements referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Sponsor Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by DSAC, or after the Closing, Newco and, before the Closing, the Company and the other parties charged with such change, amendment, modification or waiver, it being acknowledged and agreed that the Company’s execution of such an instrument will not be required after a termination of the Merger Agreement in accordance with its terms prior to the Closing.

 

 

 

 

 

8.            No party hereto may, except as set forth herein, assign either this Sponsor Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this Section shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Sponsor Letter Agreement shall be binding on, and inure to the benefit of, the Sponsor Parties, the Insiders, DSAC and the Company and their respective successors, heirs, personal representatives and assigns and permitted transferees.

 

9.            Any notice, consent or request to be given in connection with any of the terms or provisions of this Sponsor Letter Agreement shall be in writing and shall be sent or given in accordance with the terms of Section 12.03 (Notices) of the Merger Agreement to the applicable party at its principal place of business. Any notice to Sponsor or any of the Insiders shall be sent to the address set forth on such Person’s signature page hereto.

 

10.            This Sponsor Letter Agreement shall terminate at such time, if any, as the Merger Agreement is terminated in accordance with its terms prior to the Closing. In the event of a termination of the Merger Agreement in accordance with its terms prior to the Closing, this Sponsor Letter Agreement shall be of no force or effect. No such termination or reversion shall relieve the Sponsor Parties, DSAC or the Company from any obligation accruing, or liability resulting from an intentional breach of this Sponsor Letter Agreement occurring prior to such termination or reversion.

 

11.            Each of the parties hereto represents and warrants that (a) it has the power and authority, or capacity, as the case may be, to enter into this Sponsor Letter Agreement and to carry out its obligations hereunder, (b) the execution and delivery of this Sponsor Letter Agreement and the performance of its obligations hereunder have been duly and validly authorized by all corporate or limited liability company action on its part and (c) this Sponsor Letter Agreement has been duly and validly executed and delivered by each of the parties hereto and constitutes, a legal, valid and binding obligation of each such party enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws, other similar Applicable Law affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.

 

 

 

 

12.            Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment, transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing by another party hereto.

 

13.            Sections 12.05, 12.07, 12.08, 12.09, 12.13, 12.15 and 12.16 of the Merger Agreement shall apply mutatis mutandis to this Sponsor Letter Agreement.

 

14.            Standstill. From and after the Closing, Sponsor agrees that, unless specifically requested or approved in writing in advance by the Newco on behalf of the Newco Board, none of Sponsor or any of its Representatives acting on its behalf will, at any time during such period as Sponsor has any Sponsor Designee on the Newco Board and for a subsequent period expiring on the earlier of (i) one year thereafter, or (ii) the Sponsor and its Affiliates owning less than two percent (2%) of the then outstanding shares of Newco Common Stock (or, at any time during such period, assist, advise, act in concert or participate with or encourage others to), directly or indirectly: (a)  publicly offer to enter into, or publicly propose, any merger, business combination, recapitalization, restructuring or other extraordinary transaction with Newco or any direct or indirect subsidiary thereof (except any non-public proposal to the Newco Board that would not require Newco, Sponsor or any other Person to make any public announcement or other disclosure with respect thereto); (b) initiate any stockholder proposal or the convening of a stockholders’ meeting of or involving Newco or any direct or indirect subsidiary thereof; (c) solicit proxies (as such terms are defined in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange Act, with respect to any matter from, or otherwise seek to influence, advise or direct the vote of, holders of any shares of capital stock of Newco or any securities convertible into or exchangeable or exercisable for (in each case, whether currently or upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by Rule 14a-1(l)(2)(iv) under the Exchange Act; (d) otherwise publicly seek or propose to influence, advise, change or control the management, board of directors, governing instruments, affairs or policies of the Company, or any direct or indirect subsidiary thereof; (e)  enter into any discussions, negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses (a) through (d) or form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) to vote, acquire or dispose of any securities of Newco or any of its subsidiaries; or (f) make any public disclosure, or take any action, that would require Newco, Sponsor or any other Person to make any public announcement or other disclosure with respect thereto. Notwithstanding the foregoing, the restrictions set forth in this Section 14 shall not limit, restrict or prohibit (1) any acquisition, directly or indirectly, by purchase or otherwise, of any securities or direct or indirect rights or options to acquire any securities (including any derivative securities or contracts or instruments in any way related thereto) of Newco, (2) the service of any Sponsor Designee, and seeking to obtain the election of any Sponsor Designee, as a director of Newco pursuant to Section 4, or (3) any confidential, non-public discussions with or communications or proposals to management or the Newco Board by Sponsor or its Representatives, including any Sponsor Designee, that would not require Newco, Sponsor or any other Person to make any public announcement or other disclosure with respect thereto.

 

 

 

 

15.            Restrictions on Transfer of Newco Common Stock.

 

(a)            Except with the prior written consent of the Company, Sponsor shall not: (i) sell an aggregate amount of shares of Newco Common Stock during any twelve (12)-week period in excess of the aggregate amount of the daily trading volume of the Newco Class A Common Stock for all trading days occurring during the trailing one (1)-month period; or (ii) from and after such time as no Newco Class B Common Stock remains outstanding, in a single transaction or series of transactions, Transfer (by operation of law or otherwise), directly or indirectly, more than one percent (1%) of the then outstanding shares of Newco Common Stock to any one purchaser (or group of associated or affiliated purchasers or purchasers otherwise acting in concert), except for any Transfer to any Permitted Transferees; provided, however, that, for such Transfer to be effective, the transferee must enter into a written agreement with Newco agreeing to be bound by this Section 15.

 

(b)            Any Transfer or attempted Transfer of shares of Newco Common Stock in violation of this Section 15 shall, to the fullest extent permitted by Law, be null and void ab initio, and Newco shall not, and shall instruct its transfer agent and other third parties not to, record or recognize any such purported transaction on the share register of Newco.

 

16.            Non-Disparagement.

 

(a)            Sponsor shall not, directly or indirectly, whether for the Sponsor’s own account or for the account of any other Person, intentionally make any statement, written or oral, that would disparage the Company or any of its Subsidiaries or the reputation of the Company or any of its Subsidiaries or any of their respective officers, managers, directors or employees; provided that it shall not be a violation of this Section 16(a) for such Sponsor to make, directly or indirectly, truthful statements under oath, as required by Law or as part of a litigation or administrative agency proceeding.

 

(b)            The Company shall not, directly or indirectly, whether for the Company’s own account or for the account of any other Person, intentionally make any statement, written or oral, that would disparage the Sponsor or the reputation of the Sponsor or any of their respective officers, managers, directors or employees; provided that it shall not be a violation of this Section 16(b) for the Company to make, directly or indirectly, truthful statements under oath, as required by Law or as part of a litigation or administrative agency proceeding.

 

[Signature Pages Follow]

 

 

 

 

  Sincerely,

 

  Duddell Street Holdings Limited  
   
  By: /s/ Manoj Jain
    Name: Manoj Jain
    Title: Director
    Address: c/o Duddell Street Acquisition Corp.,
8/F Printing House,
6 Duddell Street,
Hong Kong

 

  Maso Capital Investments Limited  
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory
    Address: c/o Maso Capital Partners Limited
8/F Printing House,
6 Duddell Street,
Hong Kong

 

  Blackwell Partners LLC - Series A
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory

 

  Star V Partners LLC
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory

 

  /s/ MARC HOLTZMAN
  MARC HOLTZMAN
  Address:

 

  /s/ BRADFORD ALLEN
  BRADFORD ALLEN
  Address:

 

 

 

 

Acknowledged and Agreed:

 

Duddell Street ACQUISITION CORP.  
   
By: /s/ Manoj Jain  
  Name: Manoj Jain  
  Title: Director  

  

[Signature Page to Sponsor Letter Agreement]

 

 

 

  

Acknowledged and Agreed:

 

FISCALNOTE HOLDINGS, INC.  
   
By: /s/ Timothy Hwang  
  Name: Timothy Hwang  
  Title: Chief Executive Officer  

 

[Signature Page to Sponsor Letter Agreement]

 

 

 

 

Exhibit 10.2

 

SUBSCRIPTION AGREEMENT

 

SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) dated as of November 7, 2021, among Duddell Street Acquisition Corp., a Cayman Islands exempted company (the “Issuer”), and the undersigned (“Subscriber” or “you”). Defined terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Merger Agreement (as defined below).

 

WHEREAS, the Issuer, FiscalNote Holdings, Inc., a Delaware corporation (“FiscalNote”), and the other parties named therein will, immediately following the execution of this Subscription Agreement, enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, modified, supplemented or waived from time to time in accordance with its terms, the “Merger Agreement”), pursuant to which a wholly owned subsidiary of the Issuer will merge with and into FiscalNote, with FiscalNote surviving as a wholly owned subsidiary of the Issuer (together with the other transactions contemplated by the Merger Agreement, including the Subscription (defined below), the “Transactions”);

 

WHEREAS, in connection with the Transactions, Subscriber desires to subscribe for and purchase from the Issuer, following the domestication of the Issuer as a Delaware corporation and prior to the consummation of the Transactions, that number of shares of the Issuer’s class A common stock (the “Common Shares”) set forth on the signature page hereto (the “Subscribed Shares”) for a purchase price of $10.00 per share, and for the aggregate purchase price set forth on the signature page hereto (the “Purchase Price”), and the Issuer desires to issue and sell to Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price therefor by or on behalf of Subscriber to the Issuer, all on the terms and subject to the conditions set forth herein; and

 

WHEREAS, certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) or “accredited investors” (within the meaning of Rule 501(a) under the Securities Act) (each, an “Other Subscriber”) have, severally and not jointly, entered into separate subscription agreements with the Issuer that are substantially similar to this Subscription Agreement (the “Other Subscription Agreements”), pursuant to which such Other Subscribers have agreed to purchase Common Shares on the Closing Date (as defined below) at the same per share purchase price as Subscriber, and the aggregate amount of securities to be sold by the Issuer pursuant to this Subscription Agreement and the Other Subscription Agreements equals, as of the date hereof, 10,000,000 Common Shares. 

 

 

 

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

For ease of administration, this single Subscription Agreement is being executed so as to enable each Subscriber identified on the signature page to enter into a Subscription Agreement, severally, but not jointly. The parties agree that (i) this Subscription Agreement shall be treated as if it were a separate agreement with respect to each Subscriber listed on the signature page, as if each Subscriber entity had executed a separate Subscription Agreement naming only itself as Subscriber, and (ii) no Subscriber listed on the signature page shall have any liability under the Subscription Agreement for the obligations of any Other Subscriber so listed. The decision of Subscriber to purchase the Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Issuer, FiscalNote or any of their respective subsidiaries which may have been made or given by any Other Subscriber or investor or by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and Other Subscribers or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.

 

1.            Subscription. Subject to the terms and conditions hereof, at the Closing (as defined below), Subscriber hereby agrees, upon the substantially concurrent consummation of the Transactions, to subscribe for and purchase, and the Issuer hereby agrees to issue and sell to Subscriber, upon the payment of the Purchase Price, the Subscribed Shares (such subscription and issuance, the “Subscription”). Notwithstanding anything herein to the contrary, the consummation of the Subscription is contingent upon the subsequent occurrence of the closing of the Transactions as further described herein. Each of the parties hereto acknowledge and agree that the Subscribed Shares that will be issued pursuant hereto shall be shares of common stock in a Delaware corporation (and not shares in a Cayman Islands exempted company).

 

2.            Representations, Warranties and Agreements.

 

2.1.            Subscriber’s Representations, Warranties and Agreements. To induce the Issuer to issue the Subscribed Shares, Subscriber hereby represents and warrants to the Issuer and acknowledges and agrees with the Issuer, as of the date hereof and as of the Closing Date, as follows:

 

2.1.1.            Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.

 

2

 

 

2.1.2.            This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. Assuming that this Subscription Agreement constitutes the valid and binding agreement of the Issuer, this Subscription Agreement is the valid and binding obligation of Subscriber, and is enforceable against Subscriber 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.

 

2.1.3.            The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries or (ii) result in any violation of any law, statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber that would reasonably be expected to have a material adverse effect on the legal authority of Subscriber to enter into and timely perform its obligations under this Subscription Agreement (a “Subscriber Material Adverse Effect”).

 

2.1.4.            Subscriber (i) is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (“QIB”) or an “accredited investor” (as defined in Rule 501 of the Securities Act) within the meaning of Rule 501(a) under the Securities Act, (b) an Institutional Account as defined in FINRA Rule 4512(c) and (c) a sophisticated institutional investor, experienced in investing in transactions of the type contemplated by this Subscription Agreement and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, including Subscriber’s participation in the purchase of the Subscribed Shares, in each case, satisfying the applicable requirements set forth on Schedule I, and confirms that it is fully familiar, following advice of its own legal counsel, with the implications of being a QIB who is investing in the Subscribed Shares, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a QIB, and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the- acknowledgements, representations, warranties and agreements herein on behalf of each owner of each such account, for investment purposes only and not with a view to any distribution of the Subscribed Shares in any manner that would violate the securities laws of the United States or any other applicable jurisdiction and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares and is not acquiring the Subscribed 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 on Schedule I following the signature page hereto). Accordingly, Subscriber understands that the offering of the Subscribed Shares meets (x) the exemptions from filing under FINRA Rules 5123(b)(1)(C) or (J) and 5123(b)(1)(A) and (y) the institutional customer exemption under FINRA Rule 2111(b). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares.

 

3

 

 

2.1.5.            Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act, that the sale to the Subscriber is being made in reliance on a private placement exemption from registration under the Securities Act, that the Subscribed Shares have not been registered under the Securities Act or any other applicable securities laws, and that the Subscribed Shares are being offered for resale in transaction not requiring registration under the Securities Act. Except in respect of any stock lending program, Subscriber understands that the Subscribed Shares may not be offered, sold, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from or in a transaction not subject to the registration requirements of the Securities Act, and in each case, in accordance with any other applicable securities laws, and that the Subscribed Shares shall be subject to a legend to such effect (provided that such legends will be eligible for removal upon compliance with the relevant resale provisions of Rule 144). Subscriber acknowledges that the Subscribed Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Subscribed Shares will be subject to the foregoing restrictions and, as a result, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber understands that it has been advised to consult independent legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares. Subscriber has determined based on its own independent review and such professional advice as it deems appropriate that the Subscribed Shares are a suitable investment for Subscriber, notwithstanding the substantial risks inherent in investing in or holding the Subscribed Shares.

 

2.1.6.            Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants or agreements made to Subscriber by the Issuer, FiscalNote, or any of their respective affiliates, officers or directors, expressly or by implication, other than those representations, warranties, covenants and agreements expressly set forth in this Subscription Agreement.

 

2.1.7.            If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), Subscriber represents and warrants that its acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or any other applicable federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code (collectively, “Similar Laws”).

 

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2.1.8.            In making its decision to purchase the Subscribed Shares, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties and covenants of the Issuer expressly set forth in this Subscription Agreement. Without limiting the generality of the foregoing, Subscriber acknowledges that it is not relying upon, and has not relied on any representations, warranties, statements or other information provided by anyone (including without limitation, J.P. Morgan Securities LLC and Citigroup Global Markets Inc. (collectively, in their capacity as placement agents, the “Placement Agents”) or any of their respective affiliates or any control persons, officers, directors, employees, agents or representatives of any of the foregoing). Subscriber acknowledges and agrees that Subscriber has received, had access to and has had an adequate opportunity to review such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Issuer, FiscalNote and the Transactions, and that such information is preliminary and subject to change and that none of the Issuer or the Placement Agents or any other person is under any obligation to inform Subscriber regarding any such changes. Subscriber understands that the financial statements and other financial information (whether historical or in the form of financial forecasts or projections) of the Issuer have been prepared and reviewed solely by the Issuer and its officers and employees and have not been reviewed by the Placement Agents or any outside party or, except as expressly set forth therein, certified or audited by an independent third-party auditor or audit firm. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions of the Issuer and FiscalNote, receive such answers, including on the financial information, and obtain such information as Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Subscriber represents and warrants it is relying exclusively on its own sources of information, investment analysis, independent investigation, assessment and due diligence (including professional advice it deems appropriate) with respect to the Transactions, the Subscribed Shares and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer and FiscalNote including but not limited to all business, legal, regulatory, accounting, credit and tax matters, and Subscriber has satisfied itself concerning such matters relevant to its investment in the Subscribed Shares. Subscriber further acknowledges that Subscriber has not relied upon the Placement Agents in connection with Subscriber’s due diligence review of the offering of the Subscribed Shares and the Issuer.

 

2.1.9.            Subscriber acknowledges that in addition to their capacity as Placement Agents, J.P. Morgan Securities LLC is acting as sell side advisor to FiscalNote, and Citigroup Global Markets Inc. is acting as capital market advisor to the Issuer, in each case in connection with the Transactions. Issuer and FiscalNote are solely responsible for paying any fees or other commission owed to the Placement Agents in connection with the Transactions. Subscriber further acknowledges and agrees that (a) it has been informed that each of the Placement Agents is acting solely as placement agent in connection with the Transactions and is not acting as an underwriter or in any other capacity in connection with the Subscriptions and is not and shall not be construed as a fiduciary for Subscriber, the Issuer and FiscalNote or any other person or entity in connection with the Transactions, (b) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transactions, (c) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, condition (financial and otherwise), management, operations, properties or prospects of, the Issuer, FiscalNote or the Transactions, (d) none of the Placement Agents or any of their affiliates have acted as the Subscriber’s financial advisor or fiduciary in connection with the issue and purchase of Subscribed Shares, and (e) the Placement Agents shall have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions.

 

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2.1.10.            Subscriber acknowledges that none of the Placement Agents, nor any of their respective 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 the Issuer, FiscalNote or its subsidiaries or any of their respective businesses, or the Subscribed Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Issuer.

 

2.1.11.            Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and the Issuer or one of their respective representatives. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any general solicitation. Subscriber acknowledges that the Issuer represents and warrants that the Subscribed Shares were not offered by any form of general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act.

 

2.1.12.            Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription and ownership of the Subscribed Shares and is able to fend for itself in the transactions contemplated herein. Subscriber 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 Subscribed Shares and have the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that neither FiscalNote, the Issuer, nor any of their respective agents or affiliates, have provided any tax advice or any other representation or guarantee, whether written or oral, regarding the tax consequences of the transactions contemplated by this Subscription Agreement.

 

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2.1.13.            Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of an investment in the Subscribed Shares.

 

2.1.14.            Subscriber represents and warrants that none of Subscriber or any of its officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is (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 or any similar list of sanctioned persons administered by the European Union or any individual European Union member state, including the United Kingdom (collectively, “Sanctions Lists”, or a person or entity prohibited by any OFAC sanctions program, (ii) directly or indirectly owned or controlled by, or acting on behalf of, one or more persons on a Sanctions List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, including the United Kingdom; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515 or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. If Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), Subscriber represents that it maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with sanctions programs administered by OFAC, the European Union, any European United member state, and the United Kingdom, including for the screening of its investors against the Sanctions Lists and the OFAC sanctions programs. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Subscribed Shares were legally derived and in compliance with OFAC sanctions programs and were not obtained, directly or indirectly, from a Prohibited Investor.

 

2.1.15.            If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other Similar Laws or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”), Subscriber represents and warrants that neither the Issuer nor any of its affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares.

 

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2.1.16.            Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the United States Securities and Exchange Commission (the “Commission”) with respect to the beneficial ownership of the Issuer’s securities, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

 

2.1.17.            Subscriber is not a foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) and that will acquire a substantial interest in the Issuer as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing as a result of the purchase and sale of the Subscribed Shares hereunder.

 

2.1.18.            On each date the Purchase Price would be required to be funded to the Issuer pursuant to Section 3.1 Subscriber will have, sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1.

 

2.1.19.            No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Issuer.

 

2.2.            Issuer’s Representations, Warranties and Agreements. To induce Subscriber to purchase the Subscribed Shares, the Issuer hereby represents and warrants to Subscriber and agrees with Subscriber, as of the date hereof and as of the Closing Date, as follows:

 

2.2.1.            The Issuer has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with all requisite 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. As of the Closing Date, the Issuer will be duly incorporated, validly existing and in good standing under the laws of the State of Delaware.

 

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2.2.2.            The Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment for the Subscribed Shares, will be free and clear of any liens or other restrictions whatsoever in accordance with the terms of this Subscription Agreement and registered with the Issuer’s transfer agent, the Subscribed Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights under the Issuer’s constitutive agreements or applicable law.

 

2.2.3.            This Subscription Agreement has been duly authorized, validly executed and delivered by the Issuer and, assuming that this Subscription Agreement constitutes the valid and binding obligation of the Subscriber, is the valid and binding obligation of the Issuer, and is enforceable against Issuer 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.

 

2.2.4.            The execution, delivery and performance of this Subscription Agreement (including compliance by the Issuer with all of the provisions hereof), the issuance and sale of the Subscribed Shares and the consummation of the other transactions contemplated herein, including the Transactions, will not (i) 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 Issuer or any of its subsidiaries pursuant to the terms of any indenture, mortgage, charge, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Issuer or FiscalNote or their respective subsidiaries individually or taken as a whole and including the combined company after giving effect to the Transactions, or materially affects the validity or enforceability of the Subscribed Shares or the legal authority or other ability of the Issuer to enter into and timely perform its obligations under this Subscription Agreement (collectively, an “Issuer Material Adverse Effect”), (ii) result in any violation of the provisions of the organizational documents of the Issuer or any of its subsidiaries 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 Issuer or any of its subsidiaries or any of its properties that would reasonably be expected to have an Issuer Material Adverse Effect.

 

2.2.5.            Neither the Issuer, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any security of the Issuer nor solicited any offers to buy any security under circumstances that would adversely affect reliance by the Issuer on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Subscribed Shares under the Securities Act.

 

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2.2.6.            Neither the Issuer, nor any person acting on its behalf has conducted any general solicitation or general advertising, including methods described in section 502(c) of Regulation D under the Securities Act, in connection with the offer or sale of any of the Subscribed Shares and neither the Issuer, nor any person acting on its behalf has offered any of the Subscribed Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.

 

2.2.7.            Concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into the Other Subscription Agreements providing for the sale of an aggregate of 10,000,000 Common Shares for an aggregate purchase price of $100,000,000 (including the Subscribed Shares purchased and sold under this Subscription Agreement). There are no Other Subscription Agreements, side letter agreements or other agreements or understandings (including written summaries of any oral understandings) with any Other Subscriber or any other investor or potential investor with respect to the purchase of equity securities of the Issuer (other than as described in the last sentence of this Section 2.2.7 and pursuant to the Merger Agreement) which include terms and conditions (economic or otherwise) that are materially more advantageous to any such Other Subscriber, investor or potential investor (as compared to Subscriber). The Other Subscription Agreements have not been amended or modified in any material respect following the date of this Subscription Agreement. This Section 2.2.7 shall not apply to any purchase of any equity securities of the Issuer by the sponsor of the Issuer, or any of its affiliates.

 

2.2.8.            As of the date of this Subscription Agreement and as of immediately prior to the Transactions, the authorized share capital of the Issuer consists of 180,000,000 Class A Ordinary Shares, 20,000,000 DSAC Class B Ordinary Shares and 1,000,000 preference shares, $0.0001 par value each. All issued and outstanding ordinary shares of the Issuer have been duly authorized and validly issued, are fully paid, non-assessable and are not subject to preemptive or similar rights. Except as set forth above and pursuant to the Other Subscription Agreements and the Merger Agreement, there are no outstanding, and between the date hereof and the Closing, the Issuer will not issue, sell or cause to be outstanding any (a) shares, equity interests or voting securities of the Issuer, (b) securities of the Issuer convertible into or exchangeable for shares or other equity interests or voting securities of the Issuer, (c) options, warrants or other rights (including preemptive rights) or agreements, arrangements or commitments of any character, whether or not contingent, of the Issuer to subscribe for, purchase or acquire from any individual, entity or other person, and no obligation of the Issuer to issue, any ordinary shares of the Issuer, or any other equity interests or voting securities in the Issuer or any securities convertible into or exchangeable or exercisable for such shares or other equity interests or voting securities, (d) equity equivalents or other similar rights of or with respect to the Issuer, or (e) obligations of the Issuer to repurchase, redeem, or otherwise acquire any of the foregoing securities, shares, options, equity equivalents, interests or rights. There are no shareholder agreements, voting trusts or other agreements or understandings to which the Issuer is a party or by which it is bound relating to the voting of any securities of the Issuer, other than as contemplated by the Merger Agreement and the Transaction Agreements (as defined in the Merger Agreement).

 

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2.2.9.            Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 2.1 of this Subscription Agreement, (i) no registration under the Securities Act is required for the offer and sale of the Subscribed Shares by the Issuer to Subscriber and (ii) no consent, approval, order, authorization of, or registration, qualification, designation, declaration or filing 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 Issuer of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares), except for those applicable filings (a) with the Commission, (b) required by applicable state securities laws, (c) required in accordance with Section 4, (d) required by the New York Stock Exchange (the “NYSE”) or NASDAQ Stock Exchange (“NASDAQ”), and (e) the failure of which to obtain would not be reasonably be expected to have, individually or in the aggregate, an Issuer Material Adverse Effect.

 

2.2.10.            There are no pending or, to the knowledge of the Issuer, threatened, suits, claims, actions, or proceedings, which, if determined adversely, would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Issuer, which would, individually or in the aggregate, reasonably be expected to have an Issuer Material Adverse Effect.

 

2.2.11.            The Issuer is in compliance with all applicable laws, except where such non-compliance would not reasonably be expected to have an Issuer Material Adverse Effect. The Issuer has not received any written communication from a governmental entity, exchange or self regulatory organization that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have an Issuer Material Adverse Effect.

 

2.2.12.            The Issuer made available to Subscriber (including via the Commission’s EDGAR system) a true, correct and complete copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other documents filed by the Issuer with the Commission prior to the date of this Subscription Agreement (the “SEC Documents”), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder and applicable to the SEC Documents. As of their respective dates, all SEC Documents required to be filed by the Issuer with the Commission prior to the date hereof complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder. None of the SEC Documents filed under the Exchange Act, contained, when filed or, if amended prior to the date of this Subscription Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no such representation or warranty with respect to the registration statement on Form S-4 to be filed by the Issuer with respect to the Transactions or any other information relating to FiscalNote or any of its affiliates included in any SEC Document or filed as an exhibit thereto. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception and through the date hereof. There are no material outstanding or unresolved comments in comment letters from the Commission staff with respect to any of the SEC Documents.

 

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2.2.13.            No broker, finder or other financial consultant has acted on behalf of the Issuer in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on Subscriber.

 

2.2.14.            The Issuer is not, and immediately after receipt of payment for the Subscribed Shares will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

3.            Settlement Date and Delivery.

 

3.1.            Closing. The closing of the Subscription contemplated hereby (the “Closing”) shall occur on the date of, and immediately prior to (but subject to), the consummation of the Transactions (the date of the Closing, the “Closing Date”). Upon written notice from (or on behalf of) the Issuer to Subscriber (the “Closing Notice”) at least five (5) Business Days prior to the date that the Issuer reasonably expects all conditions to the closing of the Transactions to be satisfied (the “Expected Closing Date”), upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 3, Subscriber shall deliver to the Issuer, the Purchase Price for the Subscribed Shares, no later than three (3) Business Days prior to the Expected Closing Date by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice, such funds to be held by the Issuer in escrow until the Closing. On the Closing Date, the Issuer shall issue to Subscriber (or the funds and accounts designated by Subscriber if so designated by Subscriber, or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable, the Subscribed Shares, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), which Subscribed Shares, unless otherwise determined by the Issuer, shall be uncertificated, with record ownership reflected only in the register of shareholders of the Issuer (a copy of which showing Subscriber as the owner of the Subscribed Shares on and as of the Closing Date shall be provided to Subscriber on the Closing Date or promptly thereafter). If the Transactions are not consummated on or prior to the fifth (5th) Business Day after the Expected Closing Date, the Issuer shall promptly (but no later than two (2) Business Days thereafter) return the Purchase Price to Subscriber by wire transfer of United States dollars in immediately available funds to an account specified by Subscriber, and the Subscribed Shares shall be cancelled. Notwithstanding such return, (i) a failure to close on the Expected Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 3 to be satisfied or waived on or prior to the Closing Date, and (ii) unless and until this Subscription Agreement is terminated in accordance with Section 5 hereof, Subscriber shall remain obligated (A) to redeliver funds to the Issuer following the Issuer’s delivery to Subscriber of a new Closing Notice and (B) to consummate the Closing upon satisfaction of the conditions set forth in this Section 3. For purposes of this Subscription Agreement, “Business Day” means any day that, in New York, New York, is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close.

 

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3.2.            Conditions to Closing of the Issuer.

 

The Issuer’s obligations to sell and issue the Subscribed Shares at the Closing are subject to the fulfillment or (to the extent permitted by applicable law) written waiver by the Issuer, on or prior to the Closing Date, of each of the following conditions:

 

3.2.1.            Representations and Warranties Correct. The representations and warranties made by Subscriber in Section 2.1 hereof shall be true and correct in all material respects when made (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true and correct in all respects), and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) with the same force and effect as if they had been made on and as of said date, but in each case without giving effect to consummation of the Transactions.

 

3.2.2.            Compliance with Covenants. Subscriber shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by Subscriber at or prior to the Closing.

 

3.2.3.            Closing of the Transactions. All conditions precedent to each of the Issuer’s and FiscalNote’s obligations to consummate, or cause to be consummated, the Transactions set forth in the Merger Agreement shall have been satisfied or waived by the party entitled to the benefit thereof under the Merger Agreement (other than those conditions that may only be satisfied at the consummation of the Transactions, but subject to satisfaction or waiver by such party of such conditions as of the consummation of the Transactions), and the Transactions will be consummated immediately following the Closing.

 

3.2.4.            Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, statute, rule or regulation enjoining or prohibiting consummation of the transactions contemplated by this Subscription Agreement.

 

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3.3.            Conditions to Closing of Subscriber.

 

Subscriber’s obligation to purchase the Subscribed Shares at the Closing is subject to the fulfillment or (to the extent permitted by applicable law) written waiver by Subscriber, on or prior to the Closing Date, of each of the following conditions:

 

3.3.1.            Representations and Warranties Correct. The representations and warranties made by the Issuer in Section 2.2 hereof shall be true and correct in all material respects when made (other than representations and warranties that are qualified as to materiality or Issuer Material Adverse Effect, which representations and warranties shall be true and correct in all respects), and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) (other than representations and warranties that are qualified as to materiality or Issuer Material Adverse Effect, which representations and warranties shall be true and correct in all respects) with the same force and effect as if they had been made on and as of said date, but in each case without giving effect to consummation of the Transactions.

 

3.3.2.            Compliance with Covenants. The Issuer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by the Issuer at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of the Issuer to consummate the Closing.

 

3.3.3.            Closing of the Transactions. All conditions precedent to the consummation of the Transactions set forth in the Merger Agreement shall have been satisfied or waived by the party entitled to the benefit thereof under the Merger Agreement (other than those conditions that may only be satisfied at the consummation of the Transactions, but subject to satisfaction or waiver by such party of such conditions as of the consummation of the Transactions), and the Transactions will be consummated immediately following the Closing.

 

3.3.4.            Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, statute, rule or regulation enjoining or prohibiting consummation of the transactions contemplated by this Subscription Agreement.

 

4.            Registration Statement.

 

4.1.            The Issuer shall use its commercially reasonable efforts to, on or prior to the consummation of the Transactions (the “Filing Date”), file with the Commission (at the Issuer’s sole cost and expense) a registration statement (the “Registration Statement”) registering the resale of the Subscribed Shares (the “Registrable Securities”), and the Issuer shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 120th calendar day if the Commission notifies the Issuer that it will “review” the Registration Statement) following the Closing Date and (ii) the 10th Business Day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, however, that the Issuer’s obligations to include the Registrable Securities in the Registration Statement are contingent upon Subscriber furnishing a completed and executed selling shareholders questionnaire in customary form to the Issuer that contains the information required by Commission rules for a Registration Statement regarding Subscriber, the securities of the Issuer held by Subscriber and the intended method of disposition of the Registrable Securities to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as the Issuer may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Issuer shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement, if applicable, as permitted hereunder; provided, that Subscriber shall not in connection with the foregoing be required to execute any lock-up or similar agreement or otherwise be subject to any contractual restriction on the ability to transfer the Registrable Securities. For purposes of clarification, any failure by the Issuer to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 4. For purposes of this Section 4, Registrable Securities shall include, as of any date of determination, the Subscribed Shares and any other equity security of the Issuer issued or issuable with respect to the Subscribed Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event or otherwise.

 

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4.2.            In the case of the registration effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request, inform Subscriber as to the status of such registration. At its expense the Issuer shall:

 

4.2.1.            except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Issuer determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following: (i) Subscriber ceases to hold any Registrable Securities and (ii) the date all Registrable Securities held by Subscriber may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to affiliates under Rule 144 and without the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable);

 

4.2.2.            advise Subscriber, as promptly as practicable but in any event within five (5) Business Days:

 

(a)            when a Registration Statement or any post-effective amendment thereto has become effective;

 

(b)            of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;

 

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(c)            of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

 

(d)            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, the Issuer shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding the Issuer other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (a) through (d) above constitutes material, nonpublic information regarding the Issuer;

 

4.2.3.            use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;

 

4.2.4.            upon the occurrence of any event contemplated in Section 4.2.2(d), except for such times as the Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Issuer 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 Registrable Securities 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; and

 

4.2.5.            use its commercially reasonable efforts to cause all Subscribed Shares to be listed on each securities exchange or market, if any, on which the Issuer’s common stock is then listed.

 

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4.2.6.            (a) use its commercially reasonable efforts to cause the removal of the restrictive legends from any Subscribed Shares (i) when being sold under the Registration Statement, or (ii) at the time of sale of such Registrable Securities pursuant to Rule 144, and (b) request its legal counsel to deliver an opinion, if necessary, to the transfer agent 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 the Issuer, its counsel or the transfer agent, establishing that restrictive legends are no longer required. “Holder” shall mean Subscriber or any affiliate of Subscriber to which the rights under this Section 4 shall have been assigned.

 

4.3.            Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, (i) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of the Issuer’s Annual Report on Form 10-K (or, prior to such time as the Registration Statement is initially declared effective, the initial filing of the Registration Statement or a pre-effective amendment thereto), or (ii) if the filing, effectiveness or continued use of any Registration Statement would require the Issuer to make any public disclosure of material non-public information, which disclosure, in the good faith determination of the board of directors of the Issuer, after consultation with counsel to the Issuer, (a) would be required to be made in any Registration Statement in order for the applicable Registration Statement not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) the Issuer has a bona fide business purpose for not making such information public (each such circumstance, a “Suspension Event”); provided, however, that the Issuer may not delay or suspend the Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Issuer of the happening 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, Subscriber agrees that (i) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Issuer 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 the Issuer except (A) for disclosure to Subscriber’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential and (C) as required by law. If so directed by the Issuer, Subscriber will deliver to the Issuer or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed Shares shall not apply (i) to the extent Subscriber 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 pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.

 

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4.4.        The parties agree that:

 

4.4.1.            The Issuer shall indemnify and hold harmless, to the extent permitted by law, Subscriber (to the extent a seller under the Registration Statement), its directors, officers, employees, and agents, and each person who controls such Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) from and against any and all out-of-pocket losses, claims, damages, liabilities, costs and expenses (including, without limitation, any reasonable attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) (collectively, “Losses”), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto 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 insofar as the same are caused by or contained in any information furnished in writing to the Issuer by or on behalf of Subscriber expressly for use therein or Subscriber has omitted a material fact from such information; provided, however, that the indemnification contained in this Section 4.4 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Issuer (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Issuer be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by Subscriber, (B) in connection with any failure of such person to deliver or cause to be delivered a prospectus made available by the Issuer in a timely manner, (C) as a result of offers or sales effected by or on behalf of any person by means of a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Issuer, or (D) in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 4.3 hereof. The Issuer shall notify Subscriber promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 4 of which the Issuer is aware.

 

4.4.2.            Subscriber agrees, severally and not jointly with any person that is a party to the Other Subscription Agreements, to indemnify and hold harmless, to the extent permitted by law, the Issuer, its directors, officers, employees and agents and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) against any and all Losses, as incurred, that arise out of or are based upon any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or arising out of or relating to any omission of 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, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Subscriber expressly for use therein; provided, however, that the indemnification contained in this Section 4.4 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, in no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Subscribed Shares purchased pursuant to this Subscription Agreement giving rise to such indemnification obligation.

 

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4.4.3.            Any person entitled to indemnification herein shall (1) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (2) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party (which consent shall not be unreasonably withheld, conditioned or delayed), 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.

 

4.4.4.            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 and shall survive the transfer of the Subscribed Shares purchased pursuant to this Subscription Agreement.

 

4.4.5.            If the indemnification provided under this Section 4.4 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, 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. The amount paid or payable by a party as a result of the Losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.4 from any person who was not guilty of such fraudulent misrepresentation. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Subscribed Shares purchased pursuant to this Subscription Agreement giving rise to such contribution obligation.

 

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5.            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 (i) such date and time as the Merger Agreement is validly terminated in accordance with its terms, and (ii) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; provided that nothing herein will relieve any party from liability for any willful breach hereof 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 such breach. The Issuer shall promptly notify Subscriber of the termination of the Merger Agreement promptly after the termination of such agreement.

 

6.            Miscellaneous.

 

6.1.        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.

 

6.1.1.            Each party acknowledges that the parties hereto will rely on the acknowledgments, understandings, agreements, representations and warranties expressly set forth in this Subscription Agreement. Prior to the Closing, each party agrees to promptly notify the other party if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in all material respects. Each party hereto further acknowledges and agrees that the Placement Agents are third-party beneficiaries of the acknowledgments, understandings, agreements, representations and warranties of the Issuer and Subscriber expressly set forth in this Subscription Agreement.

 

6.1.2.            Each of the Issuer, the Subscriber and the Placement Agents is entitled to rely upon this Subscription Agreement and each is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

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6.1.3.            The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares, and Subscriber shall provide such information as may be reasonably requested, to the extent within Subscriber’s possession and control or otherwise readily available to Subscriber, provided that the Issuer agrees to keep confidential any such information provided by Subscriber.

 

6.1.4.            Each of Subscriber and the Issuer shall pay all of its own respective expenses in connection with this Subscription Agreement and the transactions contemplated herein.

 

6.1.5.            Each of Subscriber and the Issuer shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by this Subscription Agreement on the terms and conditions described therein no later than immediately prior to the consummation of the Transactions.

 

6.2.        Notices. Any notice or communication required or permitted hereunder 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, 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 such person may hereafter designate by notice given hereunder:

 

(i) if to Subscriber, to such address or addresses set forth on the signature page hereto;

 

(ii) if to the Issuer, to:

 

Duddell Street Acquisition Corp.

8/F Printing House, 6 Duddell Street, Hong Kong

Attention: Manoj Jain, Chief Executive Officer

Email: manoj.jain@masocapital.com

 

with a required copy (which copy shall not constitute notice) to:

 

Davis Polk & Wardwell LLP

The Hong Kong Club Building

3A Chater Road, Hong Kong

Attention: Miranda So; James Lin; Sam Kelso

Email: miranda.so@davispolk.com; james.lin@davispolk.com;

sam.kelso@davispolk.com

 

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6.3.            Entire Agreement. This Subscription Agreement 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, including any commitment letter entered into relating to the subject matter hereof.

 

6.4.            Modifications and Amendments. This Subscription Agreement may not be amended, modified, supplemented or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification, supplement or waiver is sought.

 

6.5.            Tax Forms. At or prior to Closing, Subscriber shall provide the Issuer with a duly executed and complete IRS Form W-9 or applicable IRS Form W-8, as appropriate.

 

6.6.            Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the parties hereunder (including Subscriber’s rights to purchase the Subscribed Shares) may be transferred or assigned without the prior written consent of the Issuer; provided that Subscriber’s rights and obligations hereunder may be assigned to any fund or account managed by the same investment manager as Subscriber, without the prior consent of the Issuer, provided that such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by a Subscriber, the assignee(s) shall become Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber 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 Subscriber.

 

6.7.            Benefit. 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. This Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns, except that the Placement Agents shall be express third-party beneficiaries to the representations, warranties and covenants made by the Issuer and Subscriber in this Subscription Agreement and that the Company shall be an express third-party beneficiary of the obligations of the Subscriber under this Subscription Agreement. Each of the parties hereto acknowledge and agree that (i) the Company shall be entitled to seek and obtain equitable relief, without proof of actual damages, including an injunction or injunctions or order for specific performance to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement to cause the Subscriber to pay the Purchase Price and cause the Closing to occur substantially concurrently with the transactions contemplated by the Transaction Agreements, and (ii) without in any way limiting the foregoing, the Company is an express-third party beneficiary of Sections 3, 5, 6.1.1, 6.1.2, 6.1.3, 6.1.4, 6.1.5, 6.4, 6.6 and 6.12.1 and shall be entitled to seek and obtain equitable relief, without proof of actual damages, including an injunction or injunctions or order for specific performance to prevent breaches of its rights referenced therein. Each party hereto further agrees that the Company is an express third-party beneficiary of this Section 6.7 and the Company shall not be required to obtain, furnish, or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.7, and the Subscriber irrevocably waives any right it may have to require the obtaining, furnishing, or posting of any such bond of similar instrument.

 

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6.8.            Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.

 

6.9.            Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware, provided that if subject matter jurisdiction over the matter that is the subject of the legal proceeding is vested exclusively in the U.S. federal courts, such legal proceeding shall be heard in the U.S. District Court for the District of Delaware (together with the Court of Chancery of the State of Delaware, “Chosen Courts”), in connection with any matter based upon or arising out of this Subscription Agreement. Each party hereby waives, and shall not assert as a defense in any legal dispute, that (i) such person is not personally subject to the jurisdiction of the Chosen Courts for any reason, (ii) such legal proceeding may not be brought or is not maintainable in the Chosen Courts, (iii) such person’s property is exempt or immune from execution, (iv) such legal proceeding is brought in an inconvenient forum or (v) the venue of such legal proceeding is improper. Each party hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 6.2 and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Notwithstanding the foregoing in this Section 6.9, a party may commence any action, claim, cause of action or suit in a court other than the Chosen Courts solely for the purpose of enforcing an order or judgment issued by the Chosen Courts. EACH PARTY HERETO 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, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS SUBSCRIPTION AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO 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 6.9. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY SHALL ASSERT IN SUCH LEGAL DISPUTE A NONCOMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT. FURTHERMORE, NO PARTY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.

 

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6.10.            Severability. If any provision of this Subscription Agreement shall 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.

 

6.11.            No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.

 

6.12.            Remedies.

 

      6.12.1.            The parties agree that irreparable damage would occur if this Subscription Agreement is not performed or the Closing is not consummated in accordance with its specific terms or is otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 6.9, this being in addition to any other remedy to which any party is entitled at law or in equity, including money damages. The right to specific enforcement shall include the right of the parties hereto to cause the other parties hereto to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to this Section 6.12 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

 

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      6.12.2.            The parties acknowledge and agree that this Section 6.12 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription Agreement.

 

6.13.            Survival of Representations and Warranties and Covenants. All representations and warranties made by the parties hereto, and all covenants and other agreements of the parties hereto, in this Subscription Agreement shall survive the Closing. For the avoidance of doubt, if for any reason the Closing does not occur prior to the consummation of the Transactions, all representations, warranties, covenants and agreements of the parties hereunder shall survive the consummation of the Transactions and remain in full force and effect.

 

6.14.            Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.

 

6.15.            Counterparts. This Subscription Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

6.16.            Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof.

 

6.17.            Mutual Drafting. This Subscription Agreement is the joint product of the parties hereto and each provision hereof has been subject to the mutual consultation, negotiation and agreement of the parties and shall not be construed for or against any party hereto.

 

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7.            Cleansing Statement; Disclosure.

 

7.1.            The Issuer 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 Commission 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 and the Transactions. Upon the issuance of the Disclosure Document, to the actual knowledge of the Issuer, Subscriber shall not be in possession of any material, non-public information received from the Issuer or any of its officers, directors, employees or agents, and Subscriber shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with the Issuer, the Placement Agents or any of their respective affiliates, relating to the transactions contemplated by this Subscription Agreement.

 

7.2.            The Issuer shall not publicly disclose the name of Subscriber or any affiliate or investment adviser of Subscriber, or include the name of Subscriber or any affiliate or investment adviser of Subscriber without the prior written consent (including by e-mail) of Subscriber (i) in any press release or marketing materials, or (ii) in any filing with the Commission or any regulatory agency or trading market, except as required by the federal securities laws, rules or regulations and to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under regulations of the NASDAQ, in which case the Issuer shall provide Subscriber with prior written notice (including by e-mail) of such permitted disclosure, and shall reasonably consult with Subscriber regarding such disclosure.

 

8.            Trust Account Waiver. In addition to the waiver of the Issuer pursuant to Section 7.04 of the Merger Agreement, and notwithstanding anything to the contrary set forth herein, each of the Issuer and Subscriber acknowledges that the Issuer has established a trust account containing the proceeds of its initial public offering and from certain private placements (collectively, with interest accrued from time to time thereon, the “Trust Account”). Each of the Issuer and Subscriber agrees that (i) it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, and (ii) it shall have no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, in each case in connection with this Subscription Agreement, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have in connection with this Subscription Agreement; provided, however, that nothing in this Section 8 shall be deemed to limit Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of securities of the Issuer, including, but not limited to, any redemption right with respect to any such securities of the Issuer. In the event Subscriber has any Claim against the Issuer under this Subscription Agreement, Subscriber shall pursue such Claim solely against the Issuer and its assets outside the Trust Account and not against the property or any monies in the Trust Account. Subscriber agrees and acknowledges that such waiver is material to this Subscription Agreement and has been specifically relied upon by the Issuer to induce the Issuer to enter into this Subscription Agreement and Subscriber further intends and understands such waiver to be valid, binding and enforceable under applicable law. In the event Subscriber, in connection with this Subscription Agreement, commences any action or proceeding which seeks, in whole or in part, relief against the funds held in the Trust Account or distributions therefrom or any of the Issuer’s stockholders, whether in the form of monetary damages or injunctive relief, Subscriber shall be obligated to pay to the Issuer all of its legal fees and costs in connection with any such action in the event that the Issuer prevails in such action or proceeding.

 

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9.              Non-Reliance. Subscriber 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 Agents, 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 Issuer expressly set forth in this Subscription Agreement, in making its investment or decision to invest in the Issuer. Subscriber acknowledges and agrees that none of (i) Other Subscriber pursuant to this Subscription Agreement or any other agreement related to the private placement of shares of the Issuer’s capital stock (including the controlling persons, officers, directors, partners, agents or employees of any such Subscriber), (ii) the Placement Agents, their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, or (iii) any other party to the Merger Agreement or any Non-Party Affiliate (other than the Issuer with respect to the previous sentence), shall have any liability to the Subscriber, or to any Other Subscriber pursuant to, arising out of or relating to this Subscription Agreement or any other agreement related to the private placement of shares of the Issuer’s capital stock, the negotiation hereof or thereof or its subject matter, or the transactions contemplated hereby or thereby, including, without limitation, with respect to any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Subscribed Shares hereunder 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 provided to Subscriber concerning the Issuer, FiscalNote, the Placement Agents, 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 the Issuer, FiscalNote, the Placement Agents or any of the Issuer’s, FiscalNote’s or the Placement Agents’ controlled affiliates or any family member of the foregoing.

 

10.            Rule 144. From and after such time as the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the Commission that may allow Subscriber to sell securities of the Issuer to the public without registration are available to holders of the Issuer’s shares of common stock and for so long as the Subscriber holds the Subscribed Shares, the Issuer agrees to:

 

  10.1.            make and keep public information available, as those terms are understood and defined in Rule 144; and

 

  10.2.            file with the Commission in a timely manner all reports and other documents required of the Issuer under the Securities Act and the Exchange Act so long as the Issuer remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144.

 

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If the Subscribed Shares are eligible to be sold without restriction under, and without the Issuer being in compliance with the current public information requirements of, Rule 144 under the Securities Act, then at Subscriber’s request, the Issuer will cause its transfer agent to remove the applicable restrictive legend. In connection therewith, if required by the Issuer’s transfer agent, the Issuer will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Subscribed Shares without any such legend; provided that, notwithstanding the foregoing, Issuer will not be required to deliver any such opinion, authorization, certificate or direction if it reasonably believes that removal of the legend could result in or facilitate transfers of securities in violation of applicable law.

 

11.            Massachusetts Business Trust. If Subscriber is a Massachusetts Business Trust, a copy of the Agreement and Declaration of Trust of Subscriber or any affiliate thereof is on file with the Secretary of State of the Commonwealth of Massachusetts and notice is hereby given that the Subscription Agreement is executed on behalf of the trustees of Subscriber or any affiliate thereof as trustees and not individually and that the obligations of the Subscription Agreement are not binding on any of the trustees, officers or stockholders of Subscriber or any affiliate thereof individually but are binding only upon Subscriber or any affiliate thereof and its assets and property.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, each of the Issuer and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date set forth below.

 

  DUDDELL STREET ACQUISITION CORP.
   
  By:         
  Name:
  Title:

 

   

 

 

Accepted and agreed this 7th day of November, 2021.

 

SUBSCRIBER:

 

Signature of Subscriber:   Signature of Joint Subscriber, if applicable:
     
By:     By:  
Name:   Name:
Title:   Title:
         

 

Date: November 7, 2021

 

Name of Subscriber:   Name of Joint Subscriber, if applicable:
     
     
(Please print. Please indicate name and   (Please print. Please indicate name and
Capacity of person signing above)   Capacity of person signing above)

 

     
Name in which securities are to be registered    
(if different from the name of Subscriber listed directly above):    

 

Email Address:

 

If there are joint investors, please check one:

 

Joint Tenants with Rights of Survivorship

 

Tenants-in-Common

 

Community Property

 

Subscriber’s EIN:     Joint Subscriber’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.:  

 

Aggregate Number of Subscribed Shares subscribed for:  
     
       

 

Aggregate Purchase Price: $______________.

 

You must pay the Purchase Price by wire transfer of U.S. dollars in immediately available funds, to be held in escrow until the Closing, to the account specified by the Issuer in the Closing Notice.

 

   

 

 

SCHEDULE I

 

ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER

 

A.            QUALIFIED INSTITUTIONAL BUYER STATUS

 

(Please check the applicable subparagraphs):

 

1. ¨ We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) (a “QIB”)).

 

2. ¨ We are subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB.

 

*** OR ***

 

B. INSTITUTIONAL ACCREDITED INVESTOR STATUS (Please check the applicable subparagraphs):

 

¨ We are an “accredited investor” (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.”

 

*** AND ***

 

C.            AFFILIATE STATUS

 

(Please check the applicable box) SUBSCRIBER:

 

¨           is:

 

¨           is not:

 

an “affiliate” (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.

 

*** AND ***

 

D.            13d-3 beneficial ownership information

 

 
 
 
 
 

 

   

 

 

This page should be completed by Subscriber
and constitutes a part of the Subscription Agreement.

 

   

 

 

Rule 501(a) under the Securities Act, 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. Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”

 

¨ Any bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity;

 

¨ Any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended;

 

¨ Any insurance company as defined in section 2(a)(13) of the Securities Act;

 

¨ Any investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”) or a business development company as defined in section 2(a)(48) of the Investment Company Act;

 

¨ Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958, as amended;

 

¨ 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, as amended (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”;

 

¨ Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940, as amended;

 

¨ Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, not formed for the specific purpose of acquiring the securities offered, and with total assets in excess of $5,000,000;

 

¨ Any trust, with total 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 as described in Section 230.506(b)(2)(ii) of Regulation D; or

 

¨ Any entity in which all of the equity owners are “accredited investors” meeting one or more of the above tests.

 

   

 

 

Exhibit 10.3, PART I (Institutional)

 

VOTING AND SUPPORT AGREEMENT

 

VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of November 7, 2021, among the Person named on the signature page hereto (the “Equityholder”), Duddell Street Acquisition Corp., a Cayman Islands exempted company (together with its successors, including the resulting Delaware corporation after the consummation of the Domestication, “DSAC”) and FiscalNote Holdings, Inc., a Delaware corporation (together with its successors, including the surviving corporation in the Merger (as defined below), the “Company”). For purposes of this Agreement, the Equityholder, the Company and DSAC are each a “Party” and collectively the “Parties.” Each capitalized term used and not otherwise defined herein has the meaning ascribed to such term in the Merger Agreement (as defined below).

 

R E C I T A L S

 

WHEREAS, pursuant to and subject to the terms and conditions of that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated or otherwise modified from time to time, the “Merger Agreement”), by and among DSAC Grassroots Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of DSAC (“Merger Sub”), and the Company, among other matters, (i) DSAC will domesticate as a Delaware corporation in accordance with the DGCL and the Cayman Islands Companies Law, and (ii) the Company will merge with and into Merger Sub (the “Merger”), with the Company continuing as the surviving corporation;

 

WHEREAS, as of the date hereof, the Equityholder is the record and beneficial owner of the Company Shares set forth next to the Equityholder’s name on the signature pages hereto (such shares of capital stock, together with any other shares of capital stock or other equity interests of the Company in which the Equityholder acquires record and beneficial ownership after the date hereof, including by purchase or upon exercise or conversion of any securities convertible into or exercisable or exchangeable for Company Shares, including, for the avoidance of doubt, Company Options, Company RSUs and Company Warrants, the “Subject Securities”); and

 

WHEREAS, the Equityholder is entering into this Agreement in order to induce DSAC and the Company to enter into the Merger Agreement and consummate the transactions contemplated thereby, pursuant to which the Equityholder will directly or indirectly receive a material benefit.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Equityholder hereby covenants and agrees as follows:

 

Section 1.           Voting.

 

(a)            The Equityholder agrees to take all actions necessary or advisable to execute and deliver the Company Shareholder Approval to the Company as promptly as practicable, and in any event within two business days, following the date that DSAC receives, and notifies the Company, of DSAC’s receipt of notice from the SEC of the effectiveness of the Registration Statement.

 

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(b)            From the date of this Agreement until the date on which this Agreement is terminated in accordance with its terms (the “Voting Period”), at each meeting of the Company Shareholders, and in each written consent or resolutions of any of the Company Shareholders in which the Equityholder is entitled to vote or consent, the Equityholder hereby unconditionally and irrevocably agrees to be present for such meeting and vote (in person or by proxy), or consent to any action by written consent or resolution with respect to, as applicable, the Subject Securities and any other capital stock or other equity interests of the Company entitled to vote and over which the Equityholder has voting power (i) in favor of, and to adopt and approve, as applicable, the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby, (ii) in favor of the other matters set forth in the Merger Agreement to the extent required for the Company to carry out its obligations thereunder, and (iii) in opposition to: (A) any Acquisition Transaction and any and all other proposals (x) that could reasonably be expected to delay or impair the ability of the Company to consummate the transactions contemplated by the Merger Agreement or any Ancillary Agreement or (y) which are in competition with or materially inconsistent with the Merger Agreement or any Ancillary Agreement or (B) any other action or proposal involving the Company or any of its Subsidiaries that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the transactions contemplated by the Merger Agreement or any Ancillary Agreement or would reasonably be expected to result in any of the conditions to the Company’s obligations under the Merger Agreement not being fulfilled.

 

(c)            Except as set forth in Section 1(b) above, no Equityholder shall be restricted from voting in favor of, against or abstaining with respect to any matter presented to the Equityholders, including that nothing in this Agreement shall preclude such Equityholder from exercising full power and authority to vote Equityholder’s sole discretion for or against any proposal submitted to a vote of the Equityholders to approve any payment which would, in the absence of such approval, constitute a parachute payment under Section 280G of Code.

 

(d)            The Equityholder agrees not to deposit, and to cause its Related Parties not to deposit, any Subject Securities in a voting trust or subject any Subject Securities to any arrangement or agreement with respect to the voting of such Subject Securities, unless specifically requested to do so by the Company and DSAC in connection with the Merger Agreement, the Ancillary Agreements or the transactions contemplated thereby.

 

(e)            The Equityholder agrees, except as contemplated by the Merger Agreement or any Ancillary Agreement, not to make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any capital stock or other equity interests of the Company in connection with any vote or other action with respect to transactions contemplated by the Merger Agreement or any Ancillary Agreement, other than to recommend that the Company Shareholders vote in favor of the adoption of the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby (and any actions required in furtherance thereof and otherwise as expressly provided in this Section 1, but subject to the limitations set forth in Section 1(c)).

 

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(f)             The Equityholder agrees (i) to refrain from exercising any dissenters’ rights or rights of appraisal under Applicable Law at any time with respect to the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby and (ii) not to commence or participate in any claim, derivative or otherwise, against the Company, DSAC or any of their respective Related Parties relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of the Board of Directors of the Company or DSAC in connection with this Agreement, the Merger Agreement or the Merger.

 

(g)            The Equityholder agrees that during the Voting Period it shall not, and shall cause its Related Parties not to, without DSAC’s and the Company’s prior written consent, (i) make or attempt to make any Transfer of Subject Securities, except (A) if the Equityholder is an individual, the Equityholder may Transfer any such Subject Securities (1) to any member of such Equityholder’s immediate family, or to a trust for the benefit of the Equityholder or any member of such Equityholder’s immediate family, the sole trustees of which are the Equityholder or any member of the Equityholder’s immediate family or (2) by will, other testamentary document or under the laws of intestacy upon the death of such Equityholder; or (B) if the Equityholder is an entity, the Equityholder may Transfer any Subject Securities to any partner, member or Affiliate of the Equityholder; provided that, in each case, such transferee of Subject Securities signs a joinder to this Agreement in a form reasonably acceptable to DSAC and the Company agreeing to be bound by this Section 1, (ii) grant any proxies or powers of attorney with respect to any or all of the Subject Securities, or (iii) take any action with the intent to prevent, impede, interfere with or adversely affect the Equityholder’s ability to perform its obligations under this Section 1. The Company hereby agrees to reasonably cooperate with DSAC in enforcing the transfer restrictions set forth in this Section 1.

 

(h)            In the event of any equity dividend or distribution, or any change in the equity interests of the Company by reason of any equity dividend or distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like, the term “Subject Securities” shall be deemed to refer to and include the Subject Securities as well as all such equity dividends and distributions and any securities into which or for which any or all of the Subject Securities may be changed or exchanged or which are received in such transaction. Without limiting the foregoing, the term “Subject Securities” shall be deemed to refer to and include any capital stock of the Company received by the Equityholder in connection with any conversion of debt securities or pursuant to any Contract that entitles the Equityholder to receive capital stock of the Company.

 

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(i)             During the Voting Period, the Equityholder agrees to provide to DSAC, the Company and their respective Representatives any information regarding the Equityholder or the Company Shares that is reasonably requested by DSAC, the Company or their respective Representatives (as hereinafter defined) and required in order for the Company and DSAC to comply with Sections 9.04 (Proxy Statement; Registration Statement) and 9.08 (Form 8-K Filings) of the Merger Agreement. To the extent required by Applicable Law, the Equityholder hereby authorizes the Company and DSAC to publish and disclose in any announcement or disclosure required by the SEC, NASDAQ or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), the Equityholder’s identity and ownership of the Company Shares and the nature of the Equityholder’s commitments and agreements under this Agreement, the Merger Agreement and any other Ancillary Agreements; provided that (i) such publication or disclosure is made in compliance with the provisions of the Merger Agreement, and (ii) prior to any such publication or disclosure, the Company and DSAC have provided the Equityholder with a customary opportunity to review and comment upon such announcement or disclosure, which comments the Company and DSAC will consider in good faith. “Representatives” means officers, directors, employees, agents, attorneys, accountants, advisors and representative that are acting on behalf and at the direction of a party.

 

Section 2.           Restriction on Sale of Securities.

 

(a)            The Equityholder hereby agrees and covenants that, it will not, during the period from the date of the Closing and ending on the date that is 180 days following the Closing Date (the “Lock-Up Period”), Transfer any equity interests of Newco (including shares of Newco Class A Common Stock or Newco Class B Common Stock) received or retained as consideration under the Merger Agreement, including securities held in escrow or otherwise issued or delivered after the Closing pursuant to the Merger Agreement (collectively, the “Restricted Securities”) (a “Prohibited Transfer”). If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and the Newco shall refuse to recognize any such purported transferee of such Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 2, the Newco may impose stop-transfer instructions with respect to the Restricted Securities of the Equityholder until the end of the Lock-Up Period, as well as include customary legends on any certificates for any of the Restricted Securities reflecting the restrictions under this Section 2.

 

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(b)            Notwithstanding the provisions set forth in Section 2(a), the following Transfers of Restricted Securities during the Lock-Up Period are permitted: (i) to the Newco’s officers or directors, or any Affiliates or family members of any of the Newco’s officers or directors; (ii) in the case of an individual, Transfers by gift to a member of the individual’s immediate family, or to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, Transfers pursuant to a qualified domestic relations order; (v) in the case of an entity, Transfers to a stockholder, partner, member or Affiliate of such entity; (vi) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (vii) transactions relating to Newco Common Stock or other securities convertible into or exercisable or exchangeable for Newco Common Stock acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; (viii) the exercise of any options or warrants to purchase Newco Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); (ix) Transfers to Newco or the Surviving Corporation to satisfy tax withholding obligations pursuant to the Surviving Corporation’s equity incentive plans or arrangements; (x) Transfers to the Surviving Corporation pursuant to any contractual arrangement in effect at the Closing that provides for the repurchase by the Surviving Corporation or forfeiture of the Equityholder’s Restricted Securities in connection with the termination of the Equityholder’s service to the Company; (xi) the entry, by the Equityholder, at any time after the Closing, of any trading plan providing for the sale of Newco Common Stock by the Equityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934, as amended, provided, however, that such plan does not provide for, or permit, any Prohibited Transfer and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; (xii) transactions in the event of the Newco’s completion of a liquidation, merger, amalgamation, share exchange, reorganization or other similar transaction which results in all of the Equityholders of the Surviving Corporation or Newco, as applicable, having the right to exchange their equity interests of Newco for cash, securities or other property; (xiii) Transfers by the Equityholder in sell-to-cover transactions to satisfy tax obligations of the Equityholder in connection with the Equityholder’s receipt of Newco Common Stock following the vesting and settlement of Company RSUs; provided, however, that, in the case of the foregoing clauses (i) through (vi) and (xiii), for such Transfer to be effective, the transferee must enter into a written agreement with the Newco agreeing to be bound by this Section 2.

 

(c)            For purposes of this Agreement, “Transfer” means the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).

 

(d)            For purposes of this Section 2, “immediate family” shall mean a spouse, domestic partner, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the Equityholder; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.

 

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Section 3.           Release. Effective as of the Closing, the Equityholder, on behalf of the Equityholder and her, his or its Related Parties (other than the Company and its Subsidiaries), successors and assigns (collectively, the “Releasing Parties”), forever waives, releases, remises and discharges DSAC, the Company and its Subsidiaries, their respective predecessors, successors and Related Parties and, in their capacities as such, the Equityholders, directors, officers, employees, consultants, attorneys, agents, assigns and employee benefit plans of the foregoing (collectively, the “Released Parties”) from any claim, contention, demand, cause of action (at law or in equity) or Damages that such Releasing Parties may currently have, or may have in the future, arising prior to, on or after the Closing Date (so long as the facts, circumstances, actions, omissions and/or events giving rise to such claim or Damages occurred on or prior to the Closing) solely relating to any Subject Securities beneficially owned by the Equityholder (including any rights or interests therein) and which, in each case, are based on acts, events or omissions occurring prior to or contemporaneously with the Effective Time and that relate (i) to such Equityholders ownerships of Subject Securities, or (ii) relating to the approval or consummation of the transactions contemplated hereby, the Merger Agreement, any Ancillary Agreement, or any other agreement contemplated herein or therein or (iii) arising under the governing documents of the Company or its Subsidiaries (including the Amended and Restated Right of First Refusal and Co-Sale Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021, the Amended and Restated Voting Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021, and the Investors, Rights Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021 (collectively, the “Existing Shareholder Agreements”)) (collectively, the “Released Claims”); provided, however, that the Released Claims shall not include release, impair or diminish, and the term “Released Claims” shall not include, in any respect any such claim or Damages relating to (a) the Equityholder’s rights (x) to full and complete payment for the Equityholder’s Company Shares in accordance with the Merger Agreement, the Payment Spreadsheet and any updated Payment Spreadsheet and (y) if applicable, pursuant to the Series F Preferred Stock Issuance Agreement between the Company and the Equityholder, (b) if such Releasing Party is a Service Provider, rights to earned but unpaid wages or compensation, any accrued but unpaid or unused vacation and paid time off, any accrued vested benefits, and unreimbursed business expenses, (c) any right to indemnification, insurance benefits, or reimbursement or advancement of expenses by a present or former director, board observer, manager or officer of the Company or by the Equityholders designating them in their capacity under the provisions of the Certificate of Incorporation and Bylaws of the Company or any of its Subsidiaries (or any directors’ and officers’ liability insurance policy or other fiduciary insurance policy maintained by the Company or the Surviving Corporation for the benefit of the Equityholders maintained by the Company or any of its Subsidiaries, or any indemnification agreements with the Equityholder or its board designee with respect to any act, omission, event or transaction occurring prior to or contemporaneously with the Effective Time, (d) that arise under or are based upon the terms of the Conversion Agreement, (e) the fraud of a Released Party, (f) any defenses that are necessary to enable the Equityholder to defend any claim asserted by a Released Party, or (g) any claims arising out of any legally binding commercial agreements, arrangements or relationships between the Releasing Parties and the Released Parties that are unrelated to such Equityholder’s status as a former security holder of the Company, the Merger or the Merger Agreement. The Equityholder (on behalf of the Releasing Parties) (i) represents that it has not assigned or transferred or purported to assign or transfer to any Person all or any part of, or any interest in, any claim, contention, demand, cause of action (at law or in equity) or Damages of any nature, character or description whatsoever, which is or which purports to be released or discharged by this Section 3 and (ii) acknowledges that the Releasing Parties may hereafter discover facts other than or different from those that it knows or believes to be true with respect to the subject matter of the Released Claims, but it hereby expressly agrees that, on and as of the Closing, the Equityholder (on behalf of the Releasing Parties) shall have waived and fully, finally and forever settled and released any known or unknown, suspected or unsuspected, asserted or unasserted, contingent or noncontingent claim with respect to the Released Claims, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts. The Equityholder (on behalf of the Releasing Parties) hereby acknowledges and agrees that if the Equityholder or any other Releasing Party should hereafter make any claim or demand or commence or threaten to commence any Action against any Released Party with respect to any Released Claim, this Section 3 may be raised as a complete bar to any such Action.

 

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Section 4.           Consents.

 

(a)            General Consent. Effective as of the Closing, the Equityholder hereby waives any rights such Equityholder may have as a holder of Subject Securities or with respect to the transactions contemplated by this Agreement, the Merger Agreement and the other Ancillary Agreements (including any consent rights, voting rights, preemptive rights, rights to repurchase, registration rights, rights of first refusal, rights of first offer, tag along rights or similar rights or restrictions on transfer and any rights to receive notices, opinions or similar documentation in advance of or in connection with such transfers or transactions, except as contemplated in the Merger Agreement), whether such rights arise under or pursuant to any governing documents of the Company (including the Equityholders Agreement), any other Contract, Applicable Law or otherwise.

 

(b)            Binding Effect of Merger Agreement. The Equityholder hereby represents that it has read the Merger Agreement and this Agreement, has had the opportunity to consult with its tax and legal advisors and fully understands and accepts all of the provisions of the Merger Agreement and this Agreement. The Equityholder hereby expressly acknowledges (i) that the Aggregate Consideration will be allocated as provided in the Payment Spreadsheet (as finalized in accordance with the terms of the Merger Agreement), and DSAC and, following the Closing, Newco, the Surviving Corporation and their Subsidiaries, shall be entitled to rely on such finalized Payment Spreadsheet, and to make distributions of the Aggregate Consideration in accordance therewith, in each case without any obligation to investigate or verify the accuracy or correctness thereof and (ii) the provisions of Section 4.01 (Closing Statement and Payment Spreadsheet) of the Merger Agreement. The Equityholder shall be bound by and comply with Sections 9.11 (No Shop) and 12.12 (Publicity) of the Merger Agreement (and any relevant definitions contained in any such Sections) as if such Equityholder was an original signatory to the Merger Agreement with respect to such provisions.

 

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(c)            Non-Disparagement. The Equityholder (or, if applicable in the case of an Equityholder with 5,000 or more permanent employees, the venture investment group of the Equityholder) shall not, directly or indirectly, whether for the Equityholder’s own account or for the account of any other Person, intentionally make any statement with respect to the Merger, written or oral, that would disparage the Company or any of its Subsidiaries or the reputation of the Company or any of its Subsidiaries or any of their respective officers, managers, directors or employees; provided that it shall not be a violation of this Section 4(c) for such Equityholder to make, directly or indirectly, truthful statements under oath, as required by Law or as part of a litigation or administrative agency proceeding.

 

Section 5.           Further Assurances. The Equityholder agrees to execute and deliver, or cause to be executed and delivered, all further documents and instruments as DSAC may reasonably request to consummate and make effective the transactions contemplated by the Merger Agreement and this Agreement. Without limiting the foregoing, the Equityholder agrees that it shall, and shall cause its Related Parties to, (i) file or supply, or cause to be filed or supplied, at DSAC’s or the Company’s expense in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, all notifications and filings (or, if required by the relevant Governmental Authorities, drafts thereof) required to be filed or supplied pursuant to applicable Antitrust Laws or other regulatory Laws as promptly as practicable after the date hereof (and all such filings shall not be withdrawn or otherwise rescinded without the prior written consent of DSAC) and (ii) use its reasonable efforts to provide, or cause to be provided, any information requested by Governmental Authorities in connection therewith. In addition, without limiting the foregoing, the Equityholder agrees that it shall, and shall cause its Affiliates to, upon the request of the Company, consent to the termination of the Existing Shareholder Agreements.

 

Section 6.           Equityholder Representations and Warranties. The Equityholder represents and warrants to DSAC as follows:

 

(a)            Organization. If the Equityholder is not an individual, it is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Equityholder’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of the Equityholder. If the Equityholder is an individual, the Equityholder has full legal capacity, right and authority to execute and deliver this Agreement and to perform his or her obligations hereunder.

 

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(b)            Ownership of Subject Securities. The Equityholder is the record and beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of, and has good and valid title to, all of the Equityholder’s Subject Securities (including those set forth on the Equityholder’s signature page hereto), free and clear of any Lien, or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Securities), except (i) transfer restrictions under the Securities Act of 1933, (ii) prior to the Closing, the governing documents of the Company (including the Equityholders Agreement) and (iii) this Agreement. The Equityholder’s Subject Securities set forth on the signature pages hereto are the only securities of the Company owned of record or beneficially by the Equityholder or the Equityholder’s Affiliates, family members or trusts for the benefit of the Equityholder or any of the Equityholder’s family members on the date of this Agreement. The Equityholder has the sole right to transfer and direct the voting of the Equityholder’s Subject Securities and, other than the Equityholders Agreement, none of the Equityholder’s Subject Securities are subject to any proxy, voting trust or other agreement, arrangement or restriction with respect to the voting of such Subject Securities, except as expressly provided herein for the benefit of DSAC. The Equityholder has the requisite voting power and the requisite power to agree to all of the matters set forth in this Agreement, with respect to all of its Subject Securities, in each case necessary to perform its obligations under this Agreement, with no limitations, qualifications or restrictions on such rights.

 

(c)            Authority. This Agreement has been duly executed and delivered by the Equityholder and, assuming the due authorization, execution and delivery hereof by DSAC and that this Agreement constitutes a legally valid and binding agreement of DSAC, this Agreement constitutes a legally valid and binding obligation of the Equityholder, enforceable against the Equityholder in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies). If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of the Equityholder.

 

(d)            Non-Contravention. The execution and delivery of this Agreement by the Equityholder does not, and the performance by the Equityholder of its, his or her obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Equityholder’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, (ii) if the Equityholder is not an individual, conflict with or result in a violation of the governing documents of the Equityholder, (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon the Equityholder or the Equityholder’s Subject Securities), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Equityholder’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, or (iv) result in the creation or imposition of any Lien on the Equityholder’s Subject Securities. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Equityholder is a trustee whose consent is required for either the execution and delivery of this Agreement or the consummation by the Equityholder of the transactions contemplated by this Agreement that has not been obtained.

 

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(e)            Legal Proceedings. There is no Action pending against, or to the knowledge of the Equityholder, threatened against the Equityholder or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Equityholder’s performance of its obligations under the Merger Agreement or any Ancillary Agreement. None of the Equityholder or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Equityholder’s performance of its obligations under the Merger Agreement or any Ancillary Agreement.

 

(f)            Trusts. If the Equityholder is the beneficial owner of any Subject Securities held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Merger Agreement.

 

Section 7.           DSAC Representations and Warranties. DSAC represents and warrants to the Equtiyholder as follows:

 

(a)            Organization. DSAC is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within DSAC’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of DSAC.

 

(b)            Authority. This Agreement has been duly executed and delivered by DSAC and, assuming the due authorization, execution and delivery hereof by the Equityholder and that this Agreement constitutes a legally valid and binding agreement of the Equityholder, this Agreement constitutes a legally valid and binding obligation of DSAC, enforceable against DSAC in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies). The Person signing this Agreement has full power and authority to enter into this Agreement on behalf of DSAC.

 

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(c)            Non-Contravention. The execution and delivery of this Agreement by DSAC does not, and the performance by DSAC of its obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, (ii) conflict with or result in a violation of the governing documents of DSAC, or (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon DSAC), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby.

 

(d)            Legal Proceedings. There is no Action pending against, or to the knowledge of DSAC, threatened against DSAC or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under the Merger Agreement or any Ancillary Agreement. None of DSAC or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under the Merger Agreement or any Ancillary Agreement.

 

Section 8.           Finders Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from the Equityholder or any of its Affiliates (excluding the Company) in respect of the Merger Agreement, this Agreement or any of the respective transactions contemplated thereby and hereby based upon any arrangement or agreement made by or, to the knowledge of the Equityholder, on behalf of the Equityholder.

 

Section 9.           No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in DSAC or any of its Subsidiaries any direct or indirect ownership or incidence of ownership of or with respect to the Company Shares. All rights, ownership and economic benefits of and relating to the Company Shares shall remain vested in and belong to the Equityholder, and neither DSAC nor any of its Subsidiaries shall have any authority to direct the Equityholder in the voting or disposition of any of the Company Shares, except as otherwise provided herein.

 

Section 10.         Consent to Disclosure. The Equityholder hereby consents to the publication and disclosure in the Proxy Statement and Registration Statement (and, as and to the extent otherwise required by applicable securities laws or the SEC or any other securities authorities, any other documents or communications provided by DSAC or the Company to any Governmental Authority or to securityholders of DSAC) of the Equityholder’s identity and beneficial ownership of Company Securities and the nature of the Equityholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by DSAC or the Company, a copy of this Agreement; provided, that prior to any such publication or disclosure, DSAC and the Company have provided the Equityholder with an opportunity to review and comment upon such announcement or disclosure, which comments DSAC and the Company will consider in good faith. The Equityholder will promptly provide any information reasonably requested by DSAC or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).

 

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Section 11.         Confidentiality.

 

[(a)            Until 11:59 P.M. (Eastern time) on the second anniversary of the Closing, the Equityholder will not, and will cause its Representatives to not, disclose or use at any time, any Confidential Information of which the Equityholder or such Representative, as applicable, is or becomes aware, whether or not such information is developed by the Equityholder or any of its Representatives, except to the extent that such disclosure or use is directly related to and required by the Equityholder’s or its Representatives’ performance in good faith of duties assigned to the Equityholder or its Representatives by the Company, DSAC or any of their respective Subsidiaries. The Equityholder and its Representatives will take all appropriate steps to safeguard Confidential Information in its possession and to protect it against disclosure, misuse, espionage, loss and theft. Nothing herein shall be construed to prevent disclosure of Confidential Information to the extent necessary in connection with the defense of any Action involving the Equityholder or its Representatives (provided, that the Equityholder or such Representative, as applicable, shall use its commercially reasonable efforts to ensure that confidential treatment is afforded to such Confidential Information). The obligations in this Section 11 will not (x) prohibit the Equityholder from disclosing Confidential Information to its Representatives who have a reasonable need to know such information in connection with their role as a Representative of the Equityholder or (y) apply to any Confidential Information which is required to be disclosed by the Equityholder or its Representatives pursuant to any law, rule, regulation, order of any administrative body or court of competent jurisdiction or other legal process; provided that (i) to the extent permitted by Applicable Law, the Company, DSAC or any of their respective Subsidiaries, as applicable, is given reasonable prior written notice, (ii) to the extent permitted by Applicable Law, the Equityholder cooperates (and causes its Representatives to cooperate) with any reasonable request of the Company, DSAC or any of their respective Subsidiaries, as applicable, to seek to prevent or narrow such disclosure and (iii) if after compliance with clauses ‎(i) and ‎(ii) such disclosure is still required, the Equityholder and its Representatives only disclose such portion of the Confidential Information that is expressly required by such legal process, as such requirement may be subsequently narrowed. Notwithstanding the foregoing, under no circumstance will the Equityholder or any of its Representatives be authorized to disclose any information covered by attorney-client privilege or attorney work product of the Company, DSAC or any of their respective Subsidiaries without prior written consent of the Company’s (or following the Closing, Newco’s) General Counsel or other officer designated by the Company (or, following the Closing, the Newco).

 

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(b)            In addition, the Parties expressly acknowledge and understand that (x) if the Equityholder or any of its Affiliates are, and/or are affiliated with, any private investment funds (including private equity and venture capital funds) under management that invest in or acquire companies (or interests therein) and may from time to time invest in entities that develop and utilize technologies, products or services that are similar to or competitive with those of the Company (each, an “Institutional Investor Equityholder”), then (y) nothing herein shall be construed to limit or prevent in any manner any such Institutional Investor Equityholders or any of its Affiliates from (A) engaging in or operating any business, (B) entering into any agreement or business relationship with any third party or (C) evaluating or engaging in investment or acquisition discussions with, or investing in or acquiring or serving on the board of, any entity, whether or not competitive with the Company or its Subsidiaries, and none of such activities described in the foregoing clauses (A), (B) or (C) shall in and of itself constitute a breach of this Agreement in any respect, so long as in each case, such Institutional Investor Equityholder does not use or disclose Confidential Information in breach of this Agreement in connection with such activities. Furthermore, nothing herein shall restrict an Institutional Investor Equityholder from providing information about the subject matter of the Merger Agreement in connection with fundraising or reporting activities at any time, so long as any party to which the Institutional Investor Equityholder provides such information be subject to binding confidentiality obligations with respect to that information. The Company acknowledges that the Equityholder’s ownership of equity interests of the Company inevitably enhanced its general knowledge and understanding of the Company’s industry in a way that cannot be separated from its other knowledge, and the Company agrees that this Agreement shall not restrict the Equityholder’s or any of its Affiliates’ use of such overall knowledge and understanding of the Company’s industry that would be retained in the unaided memory of an ordinary person skilled in the art, not intent on appropriating any Confidential Information, for their own purposes, including the purchase, sale, investment in, consideration of, and decisions related to other investments.

 

(c)            For purposes of this Agreement the term “Confidential Information” shall mean all material and information that is not generally known to the public (but for purposes of clarity, Confidential Information shall never exclude any such information that becomes known to the public because of the Equityholder’s or its Representatives’ unauthorized disclosure) obtained by the Equityholder prior to the end of the Restricted Period and relating to the business, affairs and assets of the Company, DSAC or any of their respective Subsidiaries, regardless of whether such material and information is maintained in physical, electronic, or other form, including without limitation any of the following with respect to the Company, DSAC or any of their respective Subsidiaries business, operating or strategic plans, products or services, fees, costs and pricing structures, designs, analyses, drawings, photographs and reports, computer software, including operating systems, applications and program listings, flow charts, manuals and documentation, databases, accounting and business methods, inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, customers and clients and customer or client lists, other copyrightable works, all production methods, processes, technology and trade secrets, and all similar and related information in whatever form. Confidential Information also includes information disclosed to the Company, DSAC or any of their respective Subsidiaries by third parties to the extent that such party has an obligation of confidentiality in connection therewith. Confidential Information will not include any information that has been published in a form generally available to the public (except as a result of the Equityholder’s or its Representatives’ unauthorized disclosure) prior to the date the Equityholder proposes to disclose or use such information. Confidential Information will not be deemed to have been published or otherwise disclosed merely because individual portions of the information have been separately published, but only if all material features comprising such information have been published in combination.]

 

OR

 

[The Equityholder agrees that, notwithstanding the termination of the Amended and Restated Investors' Rights Agreement dated of February 10, 2021 between the Company and the investors party thereto (including the Equityholder) (the "Investors' Rights Agreement") effective as of the Closing, the provisions of Section 3.3 of the Investors' Rights Agreement shall be incorporated herein by reference, mutatis mutandis, and continue in full force and effect with respect to the Equityholder from the Closing until 11:59 P.M. (Eastern time) on the second anniversary of the Closing.]

 

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Section 12.         Remedies. The Equityholder acknowledges and agrees that the covenants contained in this Agreement are reasonable and necessary to protect the business and interests of the Company, DSAC, their respective Subsidiaries or their respective Affiliates and that any breach of these covenants would cause substantial irreparable injury. Accordingly, the Equityholder agrees that a remedy at law for any breach of this Agreement would be inadequate and that the Company, DSAC, their Subsidiaries or their respective Affiliates, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive relief to secure specific performance of such covenants and to prevent a breach or contemplated breach of this Agreement without the necessity of proving actual damage or posting a bond or other security. The Equityholder will be responsible for any breach or violation of this Agreement by its Representatives. The occurrence of the Closing will not relieve the Equityholder of any obligation or liability arising from any breach by the Equityholder of this Agreement prior to the Closing.

 

Section 13.         Severability. Each provision of this Agreement is separable from every other provision of this Agreement. If any provision of this Agreement is found or held to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, then (i) such provision will be deemed amended to conform to applicable laws so as to be valid, legal and enforceable to the fullest possible extent, (ii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of such provision under any other circumstances or in any other jurisdiction, and (iii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of the remainder of such provision or the validity, legality or enforceability of any other provision of this Agreement. Without limiting the foregoing, if any covenant of the Equityholder in this Agreement is held to be unreasonable, arbitrary, or against public policy, such covenant shall be considered to be divisible with respect to scope, time and geographic area, and such lesser scope, time or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, shall be effective, binding and enforceable against the Equityholder.

 

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Section 14.         Governing Law; Submission to Jurisdiction; WAIVER OF TRIAL BY JURY. Section 1.02 (Construction), Section 12.07 (Governing Law) and Section 12.08 (Jurisdiction; WAIVER OF TRIAL BY JURY) of the Merger Agreement are incorporated herein by reference, mutatis mutandis.

 

Section 15.         Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Any extension or waiver in favor of the Equityholder of any provision hereto shall be valid only if set forth in an instrument in writing signed by DSAC and the Company; and provided, that any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

 

Section 16.         Headings; Counterparts. The provisions of Section 12.09 (Headings and Captions; Counterparts) of the Merger Agreement are hereby incorporated herein by reference, mutatis mutandis.

 

Section 17.         Trust Account Waiver. The Equityholder acknowledges that DSAC is a blank check company with the powers and privileges to effect a Business Combination. The Equityholder further acknowledges that, as described in the prospectus dated October 28, 2020 (the “Prospectus”), substantially all of DSAC’s assets consist of the cash proceeds of DSAC’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of DSAC, certain of its public shareholders and the underwriters of DSAC’s initial public offering. The Equityholder acknowledges that it has been advised by DSAC that, except with respect to interest earned on the funds held in the Trust Account that may be released to DSAC to pay its income and franchise Taxes, the Trust Agreement provides that cash in the Trust Account may be disbursed only (i) if DSAC completes the transactions which constitute a Business Combination, then to those Persons and in such amounts as described in the Prospectus; and (ii) if DSAC fails to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement and the DSAC Governing Document, to DSAC to permit DSAC to pay the costs and expenses of its dissolution, and then to DSAC’s public shareholders. For and in consideration of DSAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Equityholder hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agree not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, contracts or agreements with DSAC or any other Person; provided, however, that nothing in this Section 17 shall amend, limit, alter, change, supersede or otherwise modify the right of the Equityholder to (A) bring any action or actions for specific performance, injunctive and/or other equitable relief or (B) bring or seek a claim for Damages against DSAC, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account to holders of DSAC Ordinary Shares in accordance with the DSAC Governing Document and the Trust Agreement).

 

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Section 18.         Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that the Company, DSAC or any of their respective Subsidiaries may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, to (i) one or more of its Affiliates at any time and (ii) after the Effective Time, to any Person; provided that no such transfer or assignment shall relieve such party of its obligations hereunder or enlarge, alter or change any obligation of any other Party.

 

Section 19.         Trusts. If applicable, for purposes of this Agreement, the Equityholder with respect to any Subject Securities held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 

Section 20.         Amendments. This Agreement may only be amended or modified by an instrument in writing signed by each of the Equityholder, DSAC and the Company.

 

Section 21.         Notices. All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when delivered by email or other electronic transmission (in each case in this clause (d), solely if receipt is confirmed), addressed as follows:

 

(a)            if to DSAC, to:

 

Duddell Street Acquisition Corp.

8/F Printing House

6 Duddell Street, Hong Kong

Attention: Manoj Jain, Chief Executive Officer

Email: manoj.jain@masocapital.com

 

with copies (which shall not constitute notice) to:

 

Davis Polk & Wardwell LLP

The Hong Kong Club Building

3A Chater Road, Hong Kong

Attention: Miranda So; James Lin; Sam Kelso

Email: miranda.so@davispolk.com; james.lin@davispolk.com

sam.kelso@davispolk.com

 

16

 

 

(b)            if to the Company, to:

 

FiscalNote Holdings, Inc.

1201 Pennsylvania Avenue NW

Washington D.C. 20004

Attention: Josh Resnik,

SVP, General Counsel and Chief Content Officer

Email: josh.resnik@fiscalnote.com

 

with copies (which shall not constitute notice) to:

 

Paul Hastings LLP

875 15th Street, NW Suite 10

Washington D.C. 20005

Attention: Brandon Bortner; James Shea

Steve Camahort

Email: brandonbortner@paulhastings.com

jamesshea@paulhastings.com; stevecamahort@paulhastings.com

 

(c)            if to the Equityholder, to the address set forth on the signature page hereto.

 

Section 22.         Effectiveness; Termination. This Agreement shall become effective as of the date hereof and shall automatically terminate (without the requirement of any action by any party hereto) and be of no further force or effect upon the earliest to occur of (a) the Effective Time (except that the provisions of Sections 2, 3, 4, 5, 6 and 7 shall survive the Effective Time and continue in full force and effect in accordance with their respective terms), (b) the date on which the Merger Agreement is terminated in accordance with its terms prior to the Effective Time, (c) the mutual written consent of DSAC, the Company and the Equityholder. Nothing in this Section 22 shall relieve any Party from liability for any intentional breach of this Agreement by such Party prior to the termination of this Agreement.

 

Section 23.         Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

 

Section 24.         Capacity as Equityholder. Notwithstanding anything herein to the contrary, the Equityholder is signing this Agreement solely in the Equityholder’s capacity as a stockholder of the Company, and not in any other capacity and this Agreement shall not limit or otherwise affect the actions of the Equityholder or any Affiliate, employee or designee of the Equityholder or any of their respective Affiliates in his or her capacity, if applicable, as an officer or director of the Company or any other entity.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, each Party has duly executed this Agreement as of the date first written above.

 

  DUDDELL STREET ACQUISITION CORP.
   
  By:  
    Name:
    Title:

 

  FISCALNOTE HOLDINGS, INC.
   
  By:  
    Name:
    Title:

 

[Signature Page to Voting and Support Agreement]

 

 

 

IN WITNESS WHEREOF, each Party has duly executed this Agreement as of the date first written above.

 

EQUITYHOLDER:

 

Printed Name:                                                                                                            

 

Signature:                                                                                                                   

 

By (if an entity):                                                                                                        

 

Title (if an entity):                                                                                                     

 

  Email:  
  Address:  
     
     
     

 

  Number of shares of Class A Common Stock held:
     
     
  Number of shares of Class B Common Stock held:
     

 

[Signature Page to Voting and Support Agreement]

 

 

 

Exhibit 10.3, PART II (Individual)

 

VOTING AND SUPPORT AGREEMENT

 

VOTING AND SUPPORT AGREEMENT (this “Agreement”), dated as of November 7, 2021, among the Person named on the signature page hereto (the “Equityholder”), Duddell Street Acquisition Corp., a Cayman Islands exempted company (together with its successors, including the resulting Delaware corporation after the consummation of the Domestication, “DSAC”) and FiscalNote Holdings, Inc., a Delaware corporation (together with its successors, including the surviving corporation in the Merger (as defined below), the “Company”). For purposes of this Agreement, the Equityholder, the Company and DSAC are each a “Party” and collectively the “Parties.” Each capitalized term used and not otherwise defined herein has the meaning ascribed to such term in the Merger Agreement (as defined below).

 

R E C I T A L S

 

WHEREAS, pursuant to and subject to the terms and conditions of that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated or otherwise modified from time to time, the “Merger Agreement”), by and among DSAC Grassroots Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of DSAC (“Merger Sub”), and the Company, among other matters, (i) DSAC will domesticate as a Delaware corporation in accordance with the DGCL and the Cayman Islands Companies Law, and (ii) the Company will merge with and into Merger Sub (the “Merger”), with the Company continuing as the surviving corporation;

 

WHEREAS, as of the date hereof, the Equityholder is the record and beneficial owner of the Company Shares set forth next to the Equityholder’s name on the signature pages hereto (such shares of capital stock, together with any other shares of capital stock or other equity interests of the Company in which the Equityholder acquires record and beneficial ownership after the date hereof, including by purchase or upon exercise or conversion of any securities convertible into or exercisable or exchangeable for Company Shares, including, for the avoidance of doubt, Company Options, Company RSUs and Company Warrants, the “Subject Securities”); and

 

WHEREAS, the Equityholder is entering into this Agreement in order to induce DSAC and the Company to enter into the Merger Agreement and consummate the transactions contemplated thereby, pursuant to which the Equityholder will directly or indirectly receive a material benefit.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Equityholder hereby covenants and agrees as follows:

 

Section 1.           Voting.

 

(a)            The Equityholder agrees to take all actions necessary or advisable to execute and deliver the Company Shareholder Approval to the Company as promptly as practicable, and in any event within forty-eight (48) hours, following the date that DSAC receives, and notifies the Company, of DSAC’s receipt of notice from the SEC of the effectiveness of the Registration Statement.

 

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(b)            From the date of this Agreement until the date on which this Agreement is terminated in accordance with its terms (the “Voting Period”), at each meeting of the Company Shareholders, and in each written consent or resolutions of any of the Company Shareholders in which the Equityholder is entitled to vote or consent, the Equityholder hereby unconditionally and irrevocably agrees to be present for such meeting and vote (in person or by proxy), or consent to any action by written consent or resolution with respect to, as applicable, the Subject Securities and any other capital stock or other equity interests of the Company entitled to vote and over which the Equityholder has voting power (i) in favor of, and to adopt and approve, as applicable, the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby, (ii) in favor of the other matters set forth in the Merger Agreement to the extent required for the Company to carry out its obligations thereunder, and (iii) in opposition to: (A) any Acquisition Transaction and any and all other proposals (x) that could reasonably be expected to delay or impair the ability of the Company to consummate the transactions contemplated by the Merger Agreement or any Ancillary Agreement or (y) which are in competition with or materially inconsistent with the Merger Agreement or any Ancillary Agreement or (B) any other action or proposal involving the Company or any of its Subsidiaries that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the transactions contemplated by the Merger Agreement or any Ancillary Agreement or would reasonably be expected to result in any of the conditions to the Company’s obligations under the Merger Agreement not being fulfilled.

 

(c)            Except as set forth in Section 1(b) above, no Equityholder shall be restricted from voting in favor of, against or abstaining with respect to any matter presented to the Equityholders, including that nothing in this Agreement shall preclude such Equityholder from exercising full power and authority to vote Equityholder’s sole discretion for or against any proposal submitted to a vote of the Equityholders to approve any payment which would, in the absence of such approval, constitute a parachute payment under Section 280G of Code.

 

(d)            The Equityholder agrees not to deposit, and to cause its Related Parties not to deposit, any Subject Securities in a voting trust or subject any Subject Securities to any arrangement or agreement with respect to the voting of such Subject Securities, unless specifically requested to do so by the Company and DSAC in connection with the Merger Agreement, the Ancillary Agreements or the transactions contemplated thereby.

 

(e)            The Equityholder agrees, except as contemplated by the Merger Agreement or any Ancillary Agreement, not to make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any capital stock or other equity interests of the Company in connection with any vote or other action with respect to transactions contemplated by the Merger Agreement or any Ancillary Agreement, other than to recommend that the Company Shareholders vote in favor of the adoption of the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby (and any actions required in furtherance thereof and otherwise as expressly provided in this Section 1, but subject to the limitations set forth in Section 1(c)).

 

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(f)             The Equityholder agrees (i) to refrain from exercising any dissenters’ rights or rights of appraisal under Applicable Law at any time with respect to the Merger Agreement, the Ancillary Agreements and the transactions contemplated thereby and (ii) not to commence or participate in any claim, derivative or otherwise, against the Company, DSAC or any of their respective Related Parties relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Merger, including any claim (A) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (B) alleging a breach of any fiduciary duty of the Board of Directors of the Company or DSAC in connection with this Agreement, the Merger Agreement or the Merger.

 

(g)            The Equityholder agrees that during the Voting Period it shall not, and shall cause its Related Parties not to, without DSAC’s and the Company’s prior written consent, (i) make or attempt to make any Transfer of Subject Securities, except (A) if the Equityholder is an individual, the Equityholder may Transfer any such Subject Securities (1) to any member of such Equityholder’s immediate family, or to a trust for the benefit of the Equityholder or any member of such Equityholder’s immediate family, the sole trustees of which are the Equityholder or any member of the Equityholder’s immediate family or (2) by will, other testamentary document or under the laws of intestacy upon the death of such Equityholder; or (B) if the Equityholder is an entity, the Equityholder may Transfer any Subject Securities to any partner, member or Affiliate of the Equityholder; provided that, in each case, such transferee of Subject Securities signs a joinder to this Agreement in a form reasonably acceptable to DSAC and the Company agreeing to be bound by this Section 1, (ii) grant any proxies or powers of attorney with respect to any or all of the Subject Securities, or (iii) take any action with the intent to prevent, impede, interfere with or adversely affect the Equityholder’s ability to perform its obligations under this Section 1. The Company hereby agrees to reasonably cooperate with DSAC in enforcing the transfer restrictions set forth in this Section 1.

 

(h)            In the event of any equity dividend or distribution, or any change in the equity interests of the Company by reason of any equity dividend or distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like, the term “Subject Securities” shall be deemed to refer to and include the Subject Securities as well as all such equity dividends and distributions and any securities into which or for which any or all of the Subject Securities may be changed or exchanged or which are received in such transaction. Without limiting the foregoing, the term “Subject Securities” shall be deemed to refer to and include any capital stock of the Company received by the Equityholder in connection with any conversion of debt securities or pursuant to any Contract that entitles the Equityholder to receive capital stock of the Company.

 

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(i)             During the Voting Period, the Equityholder agrees to provide to DSAC, the Company and their respective Representatives any information regarding the Equityholder or the Company Shares that is reasonably requested by DSAC, the Company or their respective Representatives and required in order for the Company and DSAC to comply with Sections 9.04 (Proxy Statement; Registration Statement) and 9.08 (Form 8-K Filings) of the Merger Agreement. To the extent required by Applicable Law, the Equityholder hereby authorizes the Company and DSAC to publish and disclose in any announcement or disclosure required by the SEC, NASDAQ or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), the Equityholder’s identity and ownership of the Company Shares and the nature of the Equityholder’s commitments and agreements under this Agreement, the Merger Agreement and any other Ancillary Agreements; provided that (i) such publication or disclosure is made in compliance with the provisions of the Merger Agreement, and (ii) prior to any such publication or disclosure, the Company and DSAC have provided the Equityholder with a customary opportunity to review and comment upon such announcement or disclosure, which comments the Company and DSAC will consider in good faith.

 

Section 2.           Restriction on Sale of Securities.

 

(a)            The Equityholder hereby agrees and covenants that, it will not, during the period from the date of the Closing and ending on the date that is [180 days]1 following the Closing Date (the “Lock-Up Period”), Transfer any equity interests of Newco (including shares of Newco Class A Common Stock or Newco Class B Common Stock) received or retained as consideration under the Merger Agreement, including securities held in escrow or otherwise issued or delivered after the Closing pursuant to the Merger Agreement (collectively, the “Restricted Securities”) (a “Prohibited Transfer”). If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and the Newco shall refuse to recognize any such purported transferee of such Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 2, the Newco may impose stop-transfer instructions with respect to the Restricted Securities of the Equityholder until the end of the Lock-Up Period, as well as include customary legends on any certificates for any of the Restricted Securities reflecting the restrictions under this Section 2.

 

 

1 Note to Draft: To be changed to 12 months in the versions to be signed by the Founders.

 

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(b)            Notwithstanding the provisions set forth in Section 2(a), the following Transfers of Restricted Securities during the Lock-Up Period are permitted: (i) to the Newco’s officers or directors, or any Affiliates or family members of any of the Newco’s officers or directors; (ii) in the case of an individual, Transfers by gift to a member of the individual’s immediate family, or to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, Transfers pursuant to a qualified domestic relations order; (v) in the case of an entity, Transfers to a stockholder, partner, member or Affiliate of such entity; (vi) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (vii) transactions relating to Newco Common Stock or other securities convertible into or exercisable or exchangeable for Newco Common Stock acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; (viii) the exercise of any options or warrants to purchase Newco Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); (ix) Transfers to Newco or the Surviving Corporation to satisfy tax withholding obligations pursuant to the Surviving Corporation’s equity incentive plans or arrangements; (x) Transfers to the Surviving Corporation pursuant to any contractual arrangement in effect at the Closing that provides for the repurchase by the Surviving Corporation or forfeiture of the Equityholder’s Restricted Securities in connection with the termination of the Equityholder’s service to the Company; (xi) the entry, by the Equityholder, at any time after the Closing, of any trading plan providing for the sale of Newco Common Stock by the Equityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934, as amended, provided, however, that such plan does not provide for, or permit, any Prohibited Transfer and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; (xii) transactions in the event of the Newco’s completion of a liquidation, merger, amalgamation, share exchange, reorganization or other similar transaction which results in all of the Equityholders of the Surviving Company or Newco, as applicable, having the right to exchange their equity interests of Newco for cash, securities or other property; (xiii) Transfers by the Equityholder in sell-to-cover transactions to satisfy tax obligations of the Equityholder in connection with the Equityholder’s receipt of Newco Common Stock following the vesting and settlement of Company RSUs; provided, however, that, in the case of the foregoing clauses (i) through (vi) and (xiii), for such Transfer to be effective, the transferee must enter into a written agreement with the Newco agreeing to be bound by this Section 2.

 

(c)            For purposes of this Agreement, “Transfer” means the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).

 

(d)            For purposes of this Section 2, “immediate family” shall mean a spouse, domestic partner, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the Equityholder; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended.

 

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Section 3.           Consents.

 

(a)            General Consent. Effective as of the Closing, the Equityholder hereby waives any rights such Equityholder may have as a holder of Subject Securities or with respect to the transactions contemplated by this Agreement, the Merger Agreement and the other Ancillary Agreements (including any consent rights, voting rights, preemptive rights, rights to repurchase, registration rights, rights of first refusal, rights of first offer, tag along rights or similar rights or restrictions on transfer and any rights to receive notices, opinions or similar documentation in advance of or in connection with such transfers or transactions, except as contemplated in the Merger Agreement), whether such rights arise under or pursuant to any governing documents of the Company (including the Equityholders Agreement), any other Contract, Applicable Law or otherwise.

 

(b)            Binding Effect of Merger Agreement. The Equityholder hereby represents that it has read the Merger Agreement and this Agreement, has had the opportunity to consult with its tax and legal advisors and fully understands and accepts all of the provisions of the Merger Agreement and this Agreement. The Equityholder hereby expressly acknowledges (i) that the Aggregate Consideration will be allocated as provided in the Payment Spreadsheet (as finalized in accordance with the terms of the Merger Agreement), and DSAC and, following the Closing, Newco, the Surviving Corporation and their Subsidiaries, shall be entitled to rely on such finalized Payment Spreadsheet, and to make distributions of the Aggregate Consideration in accordance therewith, in each case without any obligation to investigate or verify the accuracy or correctness thereof and (ii) the provisions of Section 4.01 (Closing Statement and Payment Spreadsheet) of the Merger Agreement. The Equityholder shall be bound by and comply with Sections 9.11 (No Shop) and 12.12 (Publicity) of the Merger Agreement (and any relevant definitions contained in any such Sections) as if such Equityholder was an original signatory to the Merger Agreement with respect to such provisions.

 

Section 4.           Further Assurances. The Equityholder agrees to execute and deliver, or cause to be executed and delivered, all further documents and instruments as DSAC may reasonably request to consummate and make effective the transactions contemplated by the Merger Agreement and this Agreement. Without limiting the foregoing, the Equityholder agrees that it shall, and shall cause its Related Parties to, (i) file or supply, or cause to be filed or supplied, in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, all notifications and filings (or, if required by the relevant Governmental Authorities, drafts thereof) required to be filed or supplied pursuant to applicable Antitrust Laws or other regulatory Laws as promptly as practicable after the date hereof (and all such filings shall not be withdrawn or otherwise rescinded without the prior written consent of DSAC) and (ii) use its reasonable best efforts to provide, or cause to be provided, any information requested by Governmental Authorities in connection therewith. In addition, without limiting the foregoing, the Equityholder agrees that it shall, and shall cause its Affiliates to, upon the request of the Company, consent to the termination of the Amended and Restated Right of First Refusal and Co-Sale Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021, the Amended and Restated Voting Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021, and the Investors, Rights Agreement, by and between the Company and the individuals and entities listed thereto, dated as of February 16, 2021. Notwithstanding the foregoing, nothing in this Agreement requires that Equityholder take any action with respect to the exercise or conversion of any securities held by Equityholder and convertible into or exercisable or exchangeable for Company Shares, including, for the avoidance of doubt, Company Options, Company RSUs and Company Warrants.

 

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Section 5.           Equityholder Representations and Warranties. The Equityholder represents and warrants to DSAC as follows:

 

(a)            Organization. If the Equityholder is not an individual, it is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Equityholder’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of the Equityholder. If the Equityholder is an individual, the Equityholder has full legal capacity, right and authority to execute and deliver this Agreement and to perform his or her obligations hereunder.

 

(b)            Ownership of Subject Securities. The Equityholder is the record and beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of, and has good and valid title to, all of the Equityholder’s Subject Securities (including those set forth on the Equityholder’s signature page hereto), free and clear of any Lien, or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Securities), except (i) transfer restrictions under the Securities Act of 1933, (ii) prior to the Closing, the governing documents of the Company (including the Equityholders Agreement) and (iii) this Agreement. The Equityholder’s Subject Securities set forth on the signature pages hereto are the only securities of the Company owned of record or beneficially by the Equityholder or the Equityholder’s Affiliates, family members or trusts for the benefit of the Equityholder or any of the Equityholder’s family members on the date of this Agreement. The Equityholder has the sole right to transfer and direct the voting of the Equityholder’s Subject Securities and, other than the Equityholders Agreement, none of the Equityholder’s Subject Securities are subject to any proxy, voting trust or other agreement, arrangement or restriction with respect to the voting of such Subject Securities, except as expressly provided herein for the benefit of DSAC. The Equityholder has the requisite voting power and the requisite power to agree to all of the matters set forth in this Agreement, with respect to all of its Subject Securities, in each case necessary to perform its obligations under this Agreement, with no limitations, qualifications or restrictions on such rights.

 

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(c)            Authority. This Agreement has been duly executed and delivered by the Equityholder and, assuming the due authorization, execution and delivery hereof by DSAC and that this Agreement constitutes a legally valid and binding agreement of DSAC, this Agreement constitutes a legally valid and binding obligation of the Equityholder, enforceable against the Equityholder in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies). If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of the Equityholder.

 

(d)            Non-Contravention. The execution and delivery of this Agreement by the Equityholder does not, and the performance by the Equityholder of its, his or her obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Equityholder’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, (ii) if the Equityholder is not an individual, conflict with or result in a violation of the governing documents of the Equityholder, (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon the Equityholder or the Equityholder’s Subject Securities), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Equityholder’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, or (iv) result in the creation or imposition of any Lien on the Equityholder’s Subject Securities. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which the Equityholder is a trustee whose consent is required for either the execution and delivery of this Agreement or the consummation by the Equityholder of the transactions contemplated by this Agreement that has not been obtained.

 

(e)            Legal Proceedings. There is no Action pending against, or to the knowledge of the Equityholder, threatened against the Equityholder or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Equityholder’s performance of its obligations under the Merger Agreement or any Ancillary Agreement. None of the Equityholder or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Equityholder’s performance of its obligations under the Merger Agreement or any Ancillary Agreement.

 

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(f)            Trusts. If the Equityholder is the beneficial owner of any Subject Securities held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Merger Agreement.

 

Section 6.           DSAC Representations and Warranties. DSAC represents and warrants to the Equtiyholder as follows:

 

(a)            Organization. DSAC is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within DSAC’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of DSAC.

 

(b)            Authority. This Agreement has been duly executed and delivered by DSAC and, assuming the due authorization, execution and delivery hereof by the Equityholder and that this Agreement constitutes a legally valid and binding agreement of the Equityholder, this Agreement constitutes a legally valid and binding obligation of DSAC, enforceable against DSAC in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies). The Person signing this Agreement has full power and authority to enter into this Agreement on behalf of DSAC.

 

(c)            Non-Contravention. The execution and delivery of this Agreement by DSAC does not, and the performance by DSAC of its obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby, (ii) conflict with or result in a violation of the governing documents of DSAC, or (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon DSAC), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations under the Merger Agreement or any Ancillary Agreement or to consummate the transactions contemplated thereby.

 

(d)            Legal Proceedings. There is no Action pending against, or to the knowledge of DSAC, threatened against DSAC or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under the Merger Agreement or any Ancillary Agreement. None of DSAC or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under the Merger Agreement or any Ancillary Agreement.

 

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Section 7.           Finders Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from the Equityholder or any of its Affiliates in respect of the Merger Agreement, this Agreement or any of the respective transactions contemplated thereby and hereby based upon any arrangement or agreement made by or, to the knowledge of the Equityholder, on behalf of the Equityholder.

 

Section 8.           No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in DSAC or any of its Subsidiaries any direct or indirect ownership or incidence of ownership of or with respect to the Company Shares. All rights, ownership and economic benefits of and relating to the Company Shares shall remain vested in and belong to the Equityholder, and neither DSAC nor any of its Subsidiaries shall have any authority to direct the Equityholder in the voting or disposition of any of the Company Shares, except as otherwise provided herein.

 

Section 9.           Consent to Disclosure. The Equityholder hereby consents to the publication and disclosure in the Proxy Statement and Registration Statement (and, as and to the extent otherwise required by applicable securities laws or the SEC or any other securities authorities, any other documents or communications provided by DSAC or the Company to any Governmental Authority or to securityholders of DSAC) of the Equityholder’s identity and beneficial ownership of Company Securities and the nature of the Equityholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by DSAC or the Company, a copy of this Agreement; provided, that prior to any such publication or disclosure, DSAC and the Company have provided the Equityholder with an opportunity to review and comment upon such announcement or disclosure, which comments DSAC and the Company will consider in good faith. The Equityholder will promptly provide any information reasonably requested by DSAC or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).

 

Section 10.         Remedies. The Equityholder acknowledges and agrees that the covenants contained in this Agreement are reasonable and necessary to protect the business and interests of the Company, DSAC, their respective Subsidiaries or their respective Affiliates and that any breach of these covenants would cause substantial irreparable injury. Accordingly, the Equityholder agrees that a remedy at law for any breach of this Agreement would be inadequate and that the Company, DSAC, their Subsidiaries or their respective Affiliates, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive relief to secure specific performance of such covenants and to prevent a breach or contemplated breach of this Agreement without the necessity of proving actual damage or posting a bond or other security. The Equityholder will be responsible for any breach or violation of this Agreement by its Representatives. The occurrence of the Closing will not relieve the Equityholder of any obligation or liability arising from any breach by the Equityholder of this Agreement prior to the Closing.

 

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Section 11.         Severability. Each provision of this Agreement is separable from every other provision of this Agreement. If any provision of this Agreement is found or held to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, then (i) such provision will be deemed amended to conform to applicable laws so as to be valid, legal and enforceable to the fullest possible extent, (ii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of such provision under any other circumstances or in any other jurisdiction, and (iii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of the remainder of such provision or the validity, legality or enforceability of any other provision of this Agreement. Without limiting the foregoing, if any covenant of the Equityholder in this Agreement is held to be unreasonable, arbitrary, or against public policy, such covenant shall be considered to be divisible with respect to scope, time and geographic area, and such lesser scope, time or geographic area, or all of them, as a court of competent jurisdiction may determine to be reasonable, not arbitrary, and not against public policy, shall be effective, binding and enforceable against the Equityholder.

 

Section 12.         Governing Law; Submission to Jurisdiction; WAIVER OF TRIAL BY JURY. Section 1.02 (Construction), Section 12.07 (Governing Law) and Section 12.08 (Jurisdiction; WAIVER OF TRIAL BY JURY) of the Merger Agreement are incorporated herein by reference, mutatis mutandis.

 

Section 13.         Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. Any extension or waiver in favor of the Equityholder of any provision hereto shall be valid only if set forth in an instrument in writing signed by DSAC and the Company; and provided, that any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.

 

Section 14.         Headings; Counterparts. The provisions of Section 12.09 (Headings and Captions; Counterparts) of the Merger Agreement are hereby incorporated herein by reference, mutatis mutandis.

 

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Section 15.         Trust Account Waiver. The Equityholder acknowledges that DSAC is a blank check company with the powers and privileges to effect a Business Combination. The Equityholder further acknowledges that, as described in the prospectus dated October 28, 2020 (the “Prospectus”), substantially all of DSAC’s assets consist of the cash proceeds of DSAC’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of DSAC, certain of its public shareholders and the underwriters of DSAC’s initial public offering. The Equityholder acknowledges that it has been advised by DSAC that, except with respect to interest earned on the funds held in the Trust Account that may be released to DSAC to pay its income and franchise Taxes, the Trust Agreement provides that cash in the Trust Account may be disbursed only (i) if DSAC completes the transactions which constitute a Business Combination, then to those Persons and in such amounts as described in the Prospectus; and (ii) if DSAC fails to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement and the DSAC Governing Document, to DSAC to permit DSAC to pay the costs and expenses of its dissolution, and then to DSAC’s public shareholders. For and in consideration of DSAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Equityholder hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agree not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, contracts or agreements with DSAC or any other Person; provided, however, that nothing in this Section 15 shall amend, limit, alter, change, supersede or otherwise modify the right of the Equityholder to (A) bring any action or actions for specific performance, injunctive and/or other equitable relief or (B) bring or seek a claim for Damages against DSAC, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account to holders of DSAC Ordinary Shares in accordance with the DSAC Governing Document and the Trust Agreement).

 

Section 16.         Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that the Company, DSAC or any of their respective Subsidiaries may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, to (i) one or more of its Affiliates at any time and (ii) after the Effective Time, to any Person; provided that no such transfer or assignment shall relieve such party of its obligations hereunder or enlarge, alter or change any obligation of any other Party.

 

Section 17.         Trusts. If applicable, for purposes of this Agreement, the Equityholder with respect to any Subject Securities held in trust shall be deemed to be the relevant trust and/or the trustees thereof acting in their capacities as such trustees, in each case as the context may require, including for purposes of such trustees’ representations and warranties as to the proper organization of the trust, their power and authority as trustees and the non-contravention of the trust’s governing instruments.

 

Section 18.         Amendments. This Agreement may only be amended or modified by an instrument in writing signed by each of the Equityholder, DSAC and the Company.

 

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Section 19.         Notices. All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when delivered by email or other electronic transmission (in each case in this clause (d), solely if receipt is confirmed), addressed as follows:

 

(a)            if to DSAC, to:

 

Duddell Street Acquisition Corp.

8/F Printing House

6 Duddell Street, Hong Kong

Attention: Manoj Jain, Chief Executive Officer

Email: manoj.jain@masocapital.com

 

with copies (which shall not constitute notice) to:

 

Davis Polk & Wardwell LLP

The Hong Kong Club Building

3A Chater Road, Hong Kong

Attention: Miranda So; James Lin; Sam Kelso

Email: miranda.so@davispolk.com; james.lin@davispolk.com

sam.kelso@davispolk.com

 

(b)            if to the Company, to:

 

FiscalNote Holdings, Inc.

1201 Pennsylvania Avenue NW

Washington D.C. 20004

Attention: Josh Resnik,

SVP, General Counsel and Chief Content Officer

Email: josh.resnik@fiscalnote.com

 

with copies (which shall not constitute notice) to:

 

Paul Hastings LLP

875 15th Street, NW Suite 10

Washington D.C. 20005

Attention: Brandon Bortner; James Shea

Steve Camahort

Email: brandonbortner@paulhastings.com

jamesshea@paulhastings.com; stevecamahort@paulhastings.com

 

(c)            if to the Equityholder, to the address set forth on the signature page hereto.

 

Section 20.         Effectiveness; Termination. This Agreement shall become effective as of the date hereof and shall automatically terminate (without the requirement of any action by any party hereto) and be of no further force or effect upon the earliest to occur of (a) the Effective Time (except that the provisions of Sections 2, 3, 4, 5 and 6 shall survive the Effective Time and continue in full force and effect in accordance with their respective terms), (b) the date on which the Merger Agreement is terminated in accordance with its terms prior to the Effective Time, (c) the mutual written consent of DSAC, the Company and the Equityholder. Nothing in this Section 20 shall relieve any Party from liability for any intentional breach of this Agreement by such Party prior to the termination of this Agreement.

 

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Section 21.         Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.

 

Section 22.         Capacity as Equityholder. Notwithstanding anything herein to the contrary, the Equityholder is signing this Agreement solely in the Equityholder’s capacity as a stockholder of the Company, and not in any other capacity and this Agreement shall not limit or otherwise affect the actions of the Equityholder or any Affiliate, employee or designee of the Equityholder or any of their respective Affiliates in his or her capacity, if applicable, as an officer or director of the Company or any other entity.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, each Party has duly executed this Agreement as of the date first written above.

 

  DUDDELL STREET ACQUISITION CORP.
   
  By:  
    Name:
    Title:

 

  FISCALNOTE HOLDINGS, INC.
   
  By:  
    Name:
    Title:

 

[Signature Page to Voting and Support Agreement]

 

 

 

IN WITNESS WHEREOF, each Party has duly executed this Agreement as of the date first written above.

 

EQUITYHOLDER:

 

Printed Name:                                                                                                            

 

Signature:                                                                                                                   

 

By (if an entity):                                                                                                        

 

Title (if an entity):                                                                                                     

 

  Email:  
  Address:  
     
     
     

 

  Number of shares of Class A Common Stock held:
     
     
  Number of shares of Class B Common Stock held:
     

 

[Signature Page to Voting and Support Agreement]

 

 

 

Exhibit 10.4

 

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 

THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [____], 202[_], is made and entered into by and among FiscalNote Holdings, Inc., a Delaware corporation domesticated from Duddell Street Acquisition Corp., a Cayman Islands exempted company (the “Company”), Duddell Street Holdings Limited, a Cayman Islands limited liability company (“Sponsor”), and the undersigned parties listed as an Existing Holder on the signature pages hereto (each such party, together with Sponsor and any other person deemed an “Existing Holder” who hereafter becomes a party to this Agreement pursuant to Section 5.02 hereof, an “Existing Holder” and collectively, the “Existing Holders”), and the undersigned parties listed as a New Holder on the signature pages hereto (each such party, together with any other person deemed a “New Holder” who hereafter becomes a party to this Agreement pursuant to Section 5.02 hereof, a “New Holder” and collectively, the “New Holders”). Capitalized terms used but not otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Merger Agreement (as defined below).

 

RECITALS

 

WHEREAS, the Company, Sponsor and the Existing Holders entered into that certain Registration Rights Agreement, dated as of November 2, 2020 (the “Existing Registration Rights Agreement”), pursuant to which the Company granted to the Existing Holders certain registration rights with respect to certain securities of the Company;

 

WHEREAS, the Company has entered into that certain Agreement and Plan of Merger, dated as of November 7, 2021 (as may be amended from time to time, the “Merger Agreement”), with Grassroots Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and FiscalNote Holdings, Inc., a Delaware corporation (“FiscalNote”), pursuant to which Merger Sub will merge with and into FiscalNote with FiscalNote surviving as a wholly-owned subsidiary of the Company;

 

WHEREAS, upon the closing of the transactions contemplated by the Merger Agreement and subject to the terms and conditions set forth therein, the Existing Holders and the New Holders will hold shares of Class A common stock, par value $0.0001 per share, of the Company (“Common Stock”) and Class B common stock, par value $0.0001 per share, of the Company convertible into Common Stock, in each case, in such amounts and subject to such terms and conditions as set forth in the Merger Agreement;

 

WHEREAS, the Company has entered into Subscription Agreements, each dated November 7, 2021 (collectively, the “PIPE Investors Subscription Agreements”), with certain investors (collectively, the “PIPE Investors”) for the subscription of shares of Common Stock;

 

WHEREAS, pursuant to Section 5.5 of the Existing Registration Rights Agreement, the provisions, covenants and conditions set forth in the Existing Registration Rights Agreement may be amended or modified upon the written consent of the Company and the holders of a majority-in-interest of the “Registrable Securities” (as such term was defined in the Existing Registration Rights Agreement) at the time in question; and

 

WHEREAS, in connection with the transactions contemplated by the Merger Agreement, the Company and the Existing Holders desire to amend and restate the Existing Registration Rights Agreement in its entirety and enter into this Agreement, pursuant to which the Company shall grant the Existing Holders and the New Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

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Article I
DEFINITIONS

 

Section 1.01      Definitions. The terms defined in this ‎Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer 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 Misstatement, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.

 

Agreement” shall have the meaning given in the Preamble.

 

Bought Deal” shall mean an Underwritten Shelf Takedown in which Underwriter(s) agree to purchase Registrable Securities at an agreed price without a prior marketing process.

 

Commission” shall mean the Securities and Exchange Commission.

 

Common Stock” shall have the meaning given in the Recitals hereto.

 

Company” shall have the meaning given in the Preamble and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.

 

Demanding Holder” shall have the meaning given in Section 2.01(c).

 

Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

Existing Holder” or “Existing Holders” shall have the meaning given in the Preamble.

 

Filing Date” shall have the meaning given in Section 2.01(a).

 

Form S-1 Shelf” shall have the meaning given in Section 2.01(a).

 

Form S-3 Shelf” shall have the meaning given in Section 2.01(a).

 

Holder” or “Holders” shall mean the Existing Holders and the New Holders and any person who hereafter becomes a party of this Agreement pursuant to Section 5.02.

 

Lock-up Period” shall mean (a) with respect to the Existing Holders, the Lock-up Period as defined in that certain Sponsor Letter Agreement, dated as of November 7, 2021, by and among the Company, the Sponsor and the other Existing Holders, and (b) with respect to each New Holder, the Lock-up Period as defined in that certain Voting and Support Agreement dated as of November 7, 2021, by and among the Company and such New Holder or the Lock-up Agreement dated as of or prior to the date hereof by and among the Company and such New Holder, as applicable.

 

Maximum Number of Securities” shall have the meaning given in Section 2.01(d).

 

Minimum Takedown Threshold” shall have the meaning given in Section 2.01(c).

 

Misstatement” shall mean 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 light of the circumstances under which they were made, in the case of the Prospectus) not misleading.

 

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New Holder” or “New Holders” shall have the meaning given in the Preamble.

 

Permitted Transferees” shall mean any person or entity (i) to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the applicable Lock-up Period under the applicable agreement between such Holder and the Company, and to any transferee thereafter and (ii) who agrees to become bound by the transfer restrictions set forth in this Agreement.

 

Piggyback Registration” shall have the meaning given in Section 2.02(a).

 

Private Placement Warrants” shall mean the private placement warrants issued pursuant to the Sponsor Warrants Purchase Agreement, dated as of October 28, 2020, between the Company and Sponsor, and that certain Warrant Agreement, dated October 28, 2020, between the Company and Continental Stock Transfer & Trust Company, as warrant agent.

 

Prospectus” shall mean 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.

 

Registrable Security” shall mean (a) the Private Placement Warrants (including any shares of Common Stock issued or issuable upon the exercise of any such Private Placement Warrants), (b) any issued and 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 an Existing Holder as of the date of this Agreement, (c) any issued and outstanding shares of Common Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any such other equity security) of the Company held by a New Holder (including shares transferred to a Permitted Transferee) (i) as of the date of this Agreement or (ii) that are otherwise issued in connection with the transactions contemplated by the Merger Agreement, and (d) any other equity security of the Company issued or issuable with respect to any such share of Common Stock described in the foregoing clauses (a) through (c) by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, exchange, reorganization or other similar event; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (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 or book-entry positions 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” shall mean a registration, including any related Shelf Takedown, 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, listing 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 (including reasonable and customary fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

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(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; and

 

(f) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders in an Underwritten Offering.

 

Registration Statement” shall mean 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.

 

Requesting Holders” shall have the meaning given in Section 2.01(d).

 

Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf or any Subsequent Shelf Registration, as the case may be.

 

Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

 

Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.

 

Sponsor” shall have the meaning given in the Preamble hereto.

 

Subsequent Shelf Registration” shall have the meaning given in Section 2.01(b).

 

Underwriter” shall mean 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” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

Underwritten Shelf Takedown” shall have the meaning given in Section 2.01(c).

 

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Article II
REGISTRATIONS

 

Section 2.01      Shelf Registration.

 

(a)            Filing. As soon as practicable but no later than thirty (30) calendar days following the closing of the transactions contemplated by the Merger Agreement (the “Filing Date”), the Company shall file a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”) or, if the Company is ineligible to use a Form S-3 Shelf, a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”), in each case, covering the resale of all the Registrable Securities (determined as of two (2) business days prior to such filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as practicable after the filing thereof and no later than the earlier of (x) the ninetieth (90th) calendar day following the Filing Date if the Commission notifies the Company that it will “review” the Shelf and (y) the tenth (10th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Shelf will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit all Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after the Company is eligible to use a Form S-3 Shelf.

 

(b)            Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.04, use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use to permit all Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form.

 

(c)            Requests for Underwritten Shelf Takedowns. Subject to Section 3.04, at any time and from time to time when an effective Shelf is on file with the Commission, Sponsor, any other Existing Holder and any New Holder (any such Holder being in such case a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with a total offering price reasonably expected to exceed, in the aggregate, $20 million (the “Minimum Takedown Threshold”). Notwithstanding any other provision of this Article II, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in a Bought Deal (i) with a total offering price reasonably expected to satisfy the Minimum Takedown Threshold or (ii) that would constitute a sale of all remaining Registrable Securities held by such Demanding Holder, provided that such Registrable Securities cannot be sold in a single transaction under the volume limitations of Rule 144, then such Demanding Holder need only make a demand of the Company for such Bought Deal at least five (5) business days (or ten (10) business days if such Bought Deal is the first Underwritten Shelf Takedown to occur after the date of this Agreement) prior to the day such offering is to commence and the Company shall as expeditiously as possible use commercially reasonable efforts to facilitate such Bought Deal; provided that the Demanding Holder shall use commercially reasonable efforts to work with the Company and any Underwriters, auditors, legal counsel and other advisors prior to making such request in order to facilitate preparation of the registration statement, prospectus, prospectus supplement and other offering documentation related to the Bought Deal. All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. The initial Demanding Holder shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the Company’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). Sponsor, any other Existing Holder and any New Holder may each demand not more than one (1) Underwritten Shelf Takedown pursuant to this Section 2.01(c) in any twelve (12) month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3, that is then available for such offering.

 

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(d)            Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advise the Company, the Demanding Holders and the Holders requesting piggyback rights pursuant to this Agreement with respect to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of Common Stock or other equity securities that the Company desires to sell and all other shares of Common Stock or other equity securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback registration rights held by any other stockholders, 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, before including any shares of Common Stock or other equity securities proposed to be sold by Company or by other holders of Common Stock or other equity securities, (i) first, the Registrable Securities of the Demanding Holders (pro rata based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Demanding Holders have requested be included in such Underwritten Shelf Takedown), and (ii) second, the Registrable Securities of the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Requesting Holder (if any) has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Requesting Holders have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities.

 

(e)            Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, any Demanding Holder initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided that Sponsor or any other Demanding Holder may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by Sponsor or such other Demanding Holder, as applicable. If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.01(c), unless either (a) such Demanding Holder has not previously withdrawn any Underwritten Shelf Takedown or (b) such Demanding Holder reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if Sponsor or any New Holder elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by Sponsor or any New Holder, as applicable, for purposes of Section 2.01(c). Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.01(e), other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.01(e).

 

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Section 2.02      Piggyback Registration.

 

(a)            Piggyback Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration 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 (or by the Company and by the stockholders of the Company including, without limitation, pursuant to ‎Section 2.01 hereof), other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, 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 Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such Registration a “Piggyback Registration”). 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 Holders pursuant to this Section 2.02(a) 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. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this Section 2.02(a) shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.

 

(b)            Reduction of Piggyback Registration. 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 Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the Company desires to sell, taken together with (i) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.02 hereof, and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of persons or entities other than the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then:

 

(i)            If the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering (A) first, the 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), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.02(a), pro rata, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of persons or entities other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities;

 

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(ii)            If the Registration or registered offering is pursuant to a demand by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, 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), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.02(a), pro rata, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to the piggyback registration rights, if any, of the PIPE Investors set forth in the PIPE Investors Subscription Agreements, which can be sold without exceeding the Maximum Number of Securities; (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of persons or entities other than the Holders of Registrable Securities hereunder or the PIPE Investors, which can be sold without exceeding the Maximum Number of Securities; and (E) fifth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B), (C) and (D), the 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

 

(iii)            If the Registration or registered offering and Underwritten Shelf Takedown is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.01(c) hereof, then the Company shall include in any such Registration or registered offering securities in the priority set forth in Section 2.01(d).

 

(c)            Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.01(e)) 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 his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. 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 (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.01(f)), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.02(c).

 

(d)            Unlimited Piggyback Registration Rights. For purposes of clarity, any Piggyback Registration effected pursuant to Section 2.02 hereof shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.01(e) hereof.

 

Section 2.03      Market Stand-off. In connection with any Underwritten Offering of Common Stock of the Company, if requested by the Underwriters managing the offering, each Holder that (i) is an executive officer or director of the Company or (ii) is a beneficial owner of more than five percent (5%) of the outstanding shares of Common Stock of the Company, agrees not to, and to execute a customary lock-up agreement (in each case on substantially the same terms and conditions as all such Holders, including customary waiver “MFN” provisions) in favor of the managing Underwriters to not, sell or dispose of any shares of Common Stock of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the managing Underwriters, during the ninety (90)-day period (or such shorter time agreed to by the managing Underwriters with respect to the officers and directors of the Company) beginning on the date of pricing of such offering, except as expressly permitted by such lock-up agreement or in the event the managing Underwriters otherwise agree by written consent.

 

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Article III
COMPANY PROCEDURES

 

Section 3.01      General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:

 

(a)            prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective, or file a Subsequent Shelf Registration until all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities;

 

(b)            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 reasonably requested by a majority-in interest of the Holders of of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or 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 Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

 

(c)            prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, 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 Statement (including each preliminary Prospectus), and such other documents as the Underwriter(s) and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;

 

(d)            prior to any public offering of Registrable Securities, use its reasonable 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 Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) 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 Holders of Registrable Securities 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;

 

(e)            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;

 

(f)            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;

 

(g)            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;

 

(h)            at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference thereto);

 

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(i)            notify the Holders 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 3.04 hereof;

 

(j)            permit a representative of the Holders, the Underwriter(s), if any, and any attorney or accountant retained by such Holders 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; provided further, that notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter if such Underwriter has not then been named with respect to the applicable Underwritten Offering;

 

(k)            obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;

 

(l)            on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders and the Underwriter(s), if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders or Underwriter(s) 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 Holders;

 

(m)            in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter of such offering or sale;

 

(n)            cooperate with each Holder covered by the Registration Statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

 

(o)            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); provided that such obligation may be satisfied by the Company’s timely filings on the Commission’s EDGAR system;

 

(p)            with respect to an Underwritten Offering pursuant to Section 2.01(c), 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(s) in any Underwritten Offering;

 

(q)            otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders in connection with such Registration and comply with all applicable rules and regulations of the Securities and Exchange Commission;

 

(r)            upon request of a Holder, the Company shall (i) authorize the Company’s transfer agent to remove any legend on share certificates of such Holder’s Common Stock restricting further transfer (or any similar restriction in book entry positions of such Holder) if such restrictions are no longer required by the Securities Act or any applicable state securities laws or any agreement with the Company to which such Holder is a party, including if such shares subject to such a restriction have been sold on a Registration Statement, (ii) request the Company’s transfer agent to issue in lieu thereof shares of Common Stock without such restrictions to the Holder upon, as applicable, surrender of any stock certificates evidencing such shares of Common Stock, or to update the applicable book entry position of such Holder so that it no longer is subject to such a restriction, and (iii) use reasonable best efforts to cooperate with such Holder to have such Holder’s shares of Common Stock transferred into a book-entry position at The Depository Trust Company, in each case, subject to delivery of customary documentation, including any documentation required by such restrictive legend or book-entry notation.

 

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Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter if such Underwriter has not then been named with respect to the applicable Underwritten Offering.

 

Section 3.02      Registration Expenses. Except as otherwise provided herein, the Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that each Holder shall bear, with respect to such Holder’s Registrable Securities being sold, all Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable and documented fees and expenses of any legal counsel representing such Holders.

 

Section 3.03      Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (a) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company and (b) 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 arrangements. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide to the Company in writing information and affidavits as the Company reasonably requests for use in connection with any Registration Statement or Prospectus, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. For the avoidance of doubt, the exclusion of a Holder’s Registrable Securities as a result of this Section 3.03 shall not affect the registration of the other Registrable Securities to be included in such Registration.

 

Section 3.04      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 Holders 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. 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 (i) on more than three (3) occasions, for more than sixty (60) consecutive calendar days, or (ii) more than ninety (90) days in any twelve (12) month period, in each case as determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders 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 Holders of the expiration of any period during which it exercised its rights under this ‎Section 3.04.

 

Section 3.05      Reporting Obligations. As long as any Holder 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. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell shares of Common Stock held by such Holder 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.

 

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Article IV
INDEMNIFICATION AND CONTRIBUTION

 

Section 4.01      Indemnification.

 

(a)            The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained or incorporated by reference 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 Holder 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 Holder.

 

(b)            In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) 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, officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and out-of-pocket expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in the 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, but only to the extent that such untrue or alleged untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein. The Holders of Registrable Securities 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. For the avoidance of doubt, the obligation to indemnify under this ‎Section 4.01(b) shall be several, not joint and several, among the Holders of Registrable Securities, and the total indemnification liability of a Holder under this ‎Section 4.01(b) shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.

 

(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 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 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.

 

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(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 or controlling person of such indemnified party and shall survive the transfer of securities.

 

(e)            If the indemnification provided under ‎Section 4.01 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 and the benefits received by the such indemnifying party or indemnified party; provided, however, that the liability of any Holder under this Section 4.01(e) shall be limited to the amount of the net proceeds received by such Holder 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 Sections 4.01(a), 4.01(b) and 4.01(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 Section 4.01(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 4.01(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 4.01(e) from any person who was not guilty of such fraudulent misrepresentation.

 

Article V
MISCELLANEOUS

 

Section 5.01      Notices. Any notice or communication under this Agreement must be in writing and given by (a) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (b) delivery in person or by courier service providing evidence of delivery, or (c) transmission by hand delivery, electronic mail or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee (except in the case of electronic mail, with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: FiscalNote Holdings, Inc., 1201 Pennsylvania Avenue NW, Washington D.C. 20004, Attention: Josh Resnik, SVP, General Counsel and Chief Content Officer, email: josh.resnik@fiscalnote.com with a copy to Paul Hastings LLP, 2050 M Street NW, Washington D.C. 20036, Attention: Brandon Bortner, email: brandonbortner@paulhastings.com and, if to any Holder, at such Holder’s address, electronic mail address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this ‎Section 5.01.

 

Section 5.02      Assignment; No Third Party Beneficiaries.

 

(a)            Subject to ‎Section 5.02(b) and Section 5.02(c), this Agreement and the rights, duties and obligations of the Company and the Holders of Registrable Securities, as the case may be, hereunder may not be assigned or delegated by the Company or the Holders of Registrable Securities, as the case may be, in whole or in part.

 

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(b)            Prior to the expiration of the applicable Lock-up Period, no Holder subject to any such Lock-up Period may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, in violation of the applicable Lock-up Period, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement.

 

(c)            This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the applicable Holders, which shall include (i) Permitted Transferees and (ii) any transferee of all of the Registrable Securities of a Holder.

 

(d)            This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and ‎Section 5.02 hereof.

 

(e)            No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in ‎Section 5.01 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement in the form set forth in Exhibit A hereto). Any transfer or assignment made other than as provided in this ‎Section 5.02 shall be null and void.

 

Section 5.03      Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced. Each party agrees that an electronic copy of this Agreement shall be considered and treated like an original, and that an electronic or digital signature shall be as valid as a handwritten signature (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g.,www.docusign.com)).

 

Section 5.04      Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE STATE OF NEW YORK.

 

EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

Section 5.05      Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority-in-interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, (a) any amendment hereto or waiver hereof that adversely affects one Holder or group of affiliated Holders, solely in his, her or its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected, (b) any amendment hereto or waiver hereof that adversely affects the rights of any Existing Holder shall require the consent of such Existing Holder, and (c) any amendment hereto or waiver hereof that adversely affects either the Existing Holders as a group or the New Holders as a group, as the case may be, in a manner that is materially adversely different from the other Holders shall require the consent of at least a majority-in-interest of the Registrable Securities held by such Existing Holders or a majority-in-interest of the Registrable Securities held by such New Holders, as applicable, at the time in question so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

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Section 5.06      Other Registration Rights. Other than as provided in (i) the Warrant Agreement, dated as of October 28, 2020, by and between the Company and Continental Stock Transfer & Trust Company, (ii) the Backstop Agreement, dated as of November 7, 2021 by and between the Company and certain of the Existing Holders and (iii) the PIPE Investors Subscription Agreements, the Company represents and warrants that no person, other than a Holder of Registrable Securities, 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. 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. For so long as any Existing Holders hold, in the aggregate, at least five percent (5%) of the outstanding shares of Common Stock of the Company, the Company will not grant any person or entity with any registration rights with respect to the capital stock of the Company that are senior to or in conflict or inconsistent with the rights of the Holders as set forth in this Agreement in any material respect.

 

Section 5.07      Term. This Agreement shall terminate upon the earlier of (a) the tenth anniversary of the date of this Agreement, (b) the date as of which all of the Registrable Securities have been sold or disposed of and (c) with respect to any particular Holder, the date as of which (i) all of the Registrable Securities held by such Holder have been sold pursuant to a Registration Statement (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)) or (ii) such Holder is permitted to sell the Registrable Securities held by him, her, or it under Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale or another exemption from registration under the Securities Act. The provisions of ‎Section 3.05 and ‎Article IV shall survive any termination.

 

Section 5.08      Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

Section 5.09      Entire Agreement; Restatement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. Upon the consummation of the transactions contemplated by the Merger Agreement, the Existing Registration Rights Agreement shall no longer be of any force or effect.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

  COMPANY:
   
  FISCALNOTE HOLDINGS, INC.
   
  By:  
  Name:
  Title:
   
  SPONSOR:
   
  DUDDELL STREET HOLDINGS LIMITED
   
  By:
   
  By:  
  Name:  
  Title:  
   
  OTHER EXISTING HOLDERS:
   
  By:  
  Name:  
  Title:  

 

[Signature Page to Amended and Restated Registration Rights Agreement]

 

 

 

 

    NEW HOLDER:
   
  By:  
  Name:
  Title:

 

 

[Signature Page to Amended and Restated Registration Rights Agreement]

 

 

 

 

    NEW HOLDER:
   
  By:  
  Name:
  Title:

  

[Signature Page to Amended and Restated Registration Rights Agreement]

 

 

 

 

Exhibit A

 

REGISTRATION RIGHTS AGREEMENT JOINDER

 

The undersigned is executing and delivering this joinder (this “Joinder”) pursuant to the Amended and Restated Registration Rights Agreement, dated as of [●] (as the same may hereafter be amended, the “Registration Rights Agreement”), among FiscalNote Holdings, Inc., a Delaware corporation (the “Company”), and the other persons or entities named as parties therein. Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.

 

By executing and delivering this Joinder to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s shares of Common Stock shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein.

 

Accordingly, the undersigned has executed and delivered this Joinder as of the __________ day of __________, 20__.

 

 

  Signature of Stockholder
   
  Print Name of Stockholder
  Its:
   
  Address:
   
   
   

Agreed and Accepted as of 

       
____________, 20__  
[________]  
     
By:                                                        
Name:  
Its:  

 

 

 

Exhibit 10.5

 

BACKSTOP AGREEMENT

 

Backstop Agreement (this “Agreement”), dated as of November 7, 2021, among (i) Duddell Street Acquisition Corp., a Cayman Islands exempted company (together with its successors, including the resulting Delaware corporation after the consummation of the Domestication, “DSAC”), and (ii) Maso Capital Investments Limited, a Cayman Islands exempted company (“MCIL”), Blackwell Partners LLC - Series A, a Delaware limited liability company (“Blackwell”), and Star V Partners LLC, a Tennessee limited liability company (“Star” and together with MCIL and Blackwell, collectively, the “Purchasers” and each, a “Purchaser”). For purposes of this Agreement, DSAC and the Purchasers are each a “Party” and collectively the “Parties.” Each capitalized term used and not otherwise defined herein has the meaning ascribed to such term in the Merger Agreement (as defined below).

 

WHEREAS, pursuant to and subject to the terms and conditions of that certain Agreement and Plan of Merger, dated as of the date hereof (as amended, restated or otherwise modified from time to time, the “Merger Agreement”), among DSAC, Grassroots Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of DSAC (“Merger Sub”), and FiscalNote Holdings, Inc., a Delaware corporation (together with its successors, including the surviving corporation in the Merger (as defined below), the “Company”), among other matters, (i) DSAC will domesticate as a Delaware corporation in accordance with the DGCL and the Cayman Islands Companies Law, and (ii) the Company will merge with and into Merger Sub (the “Merger”), with the Company continuing as the surviving corporation;

 

WHEREAS, in connection with the entry into the Merger Agreement, the Purchasers have allocated and committed up to one hundred seventy five million dollars ($175,000,000) to subscribe for a number of shares of Newco Class A Common Stock, subject to the aggregate number of DSAC Ordinary Shares that are redeemed (and for which redemptions are not subsequently withdrawn in accordance with the DSAC Governing Document) by the Pre-Closing DSAC Holders pursuant to the DSAC Shareholder Redemption Right, if any (the “DSAC Redeemed Shares”); and

 

WHEREAS, the Purchasers are now entering into this Agreement with DSAC, whereby at the Closing under the Merger Agreement, the Purchasers will acquire, and DSAC will issue and sell to the Purchasers, shares of Newco Class A Common Stock, on a private placement basis, solely to the extent necessary to fund up to the DSAC Shareholder Redemption Amount (as defined below) on a share for share basis, on the terms and conditions set forth herein (the “Backstop Purchase Shares”).

 

 

 

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.            Backstop Limit; Backstop Notice.

 

(a)            Notwithstanding anything to the contrary in this Agreement, the Purchasers shall not be required to fund any amount pursuant to this Agreement that is greater than the product of the Redemption Price (as defined in the DSAC Governing Document), multiplied by the DSAC Redeemed Shares (the “DSAC Shareholder Redemption Amount”).

 

(b)            DSAC shall deliver a written notice (the “Backstop Notice”) to the Purchasers at least ten (10) Business Days prior to the Closing Date setting forth:

 

(i)            the total number of DSAC Redeemed Shares;

 

(ii)           the Subscription Amount;

 

(iii)          the resulting BPS Purchase Price (as defined below) (as calculated in accordance with Section 2(a)), which amount, for the avoidance of doubt, shall in no event be greater than the DSAC Shareholder Redemption Amount; and

 

(iv)          DSAC’s wire instructions.

 

Subscription Amount” means a number of Backstop Purchase Shares equal to that number of Backstop Purchase Shares, if any, that would be required to be sold hereunder, at a purchase price of $10.00 per share, such that the product of the number of the Backstop Purchase Shares multiplied by $10.00 shall equal the lesser of (i) the DSAC Shareholder Redemption Amount or (ii) $175,000,000. Notwithstanding the foregoing, for the avoidance of doubt, the “Subscription Amount” shall not include any shares of Newco Common Stock in respect of DSAC Ordinary Share redemptions that have been subsequently withdrawn in accordance with the DSAC Governing Document. Only one (1) Backstop Notice may be delivered hereunder.

 

2.            Sale and Purchase.

 

(a)            Subject to the terms and conditions hereof, following delivery of the Backstop Notice by DSAC to the Purchasers hereunder, DSAC shall issue and sell to the Purchasers, and the Purchasers shall purchase from DSAC a number of Backstop Purchase Shares equal to the Subscription Amount for an aggregate purchase price equal to the product of (x) $10.00 multiplied by (y) the number of Backstop Purchase Shares to be issued and sold hereunder (such aggregate purchase price, the “BPS Purchase Price”). The numbers of shares, per share amounts and purchase price of the Backstop Purchase Shares and the BPS Purchase Price, as applicable, shall be appropriately adjusted to reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof. Each Purchaser’s obligations hereunder shall be joint and several with the obligations of the other Purchasers.

 

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(b)            The closing of the sale of the Backstop Purchase Shares (the “BPS Closing”) shall be held simultaneously with the closing of the PIPE Financing and immediately prior to the Effective Time. At the BPS Closing, DSAC shall issue to the Purchasers (or the funds, accounts and/or assignees designated by the Purchasers in accordance with this Agreement if so designated by the Purchasers, or its nominee in accordance with its delivery instructions) or to a custodian designated by any Purchaser, as applicable, in each case prior to the BPS Closing, the Backstop Purchase Shares, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), which Backstop Purchase Shares, unless otherwise determined by DSAC, shall be uncertificated, with record ownership reflected only in the register of shareholders of DSAC (a copy of which showing the Purchasers and/or their designees as the owners of the relevant Backstop Purchase Shares on and as of the Closing Date shall be provided to the Purchasers on the Closing Date or promptly thereafter).

 

(c)            The Purchasers shall enter into the Amended and Restated Registration Rights Agreement at Closing, and the Purchasers shall have certain registration rights with respect to the Backstop Purchase Shares as referenced therein (the “Registration Rights”).

 

3.            Restriction on Sale of Backstop Purchase Shares.

 

(a)            Each Purchaser hereby agrees and covenants that, such Purchaser will not, (i) during the period from the Closing Date and ending on the date that is 180 days following after the Closing Date (the “Initial Lock-Up Period”), Transfer any of the Backstop Purchase Shares (collectively, the “Restricted Securities”), and (ii) during the period from the date that is 180 days following after the Closing Date and ending on the first anniversary of the Closing Date (the “Subsequent Lock-Up Period” and together with the Initial Lock-Up Period, the “Lock-Up Period”), Transfer more than 50% of each type of the Restricted Securities (any Transfer prohibited under clause (i) or (ii) above, a “Prohibited Transfer”). If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and DSAC shall refuse to recognize any such purported transferee of such Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 3, DSAC may impose stop-transfer instructions with respect to the Restricted Securities of Sponsor until the end of the Lock-Up Period, as well as include customary legends on any certificates for any of the Restricted Securities reflecting the restrictions under this Section 3.

 

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(b)            Notwithstanding the provisions set forth in Section 3(a), the following Transfers of Restricted Securities during the Lock-Up Period are permitted: (i) to DSAC’s officers or directors, or any Affiliates or family members of any of DSAC’s officers or directors; (ii) in the case of an individual, Transfers by gift to a member of the individual’s immediate family, or to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, Transfers pursuant to a qualified domestic relations order; (v) in the case of an entity, Transfers to a stockholder, partner, member or Affiliate of such entity; (vi) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (vii) transactions relating to Newco Common Stock or other securities convertible into or exercisable or exchangeable for Newco Common Stock acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period; (viii) the exercise of any options or warrants to purchase Newco Common Stock (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis); (ix) Transfers to Newco or the Surviving Corporation to satisfy tax withholding obligations pursuant to the Surviving Corporation’s equity incentive plans or arrangements; (x) the entry, by the applicable holder of the Restricted Securities that is party hereto, at any time after the Closing, of any trading plan providing for the sale of Newco Common Stock by such holder, which trading plan meets the requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934, as amended, provided, however, that such plan does not provide for, or permit, any Prohibited Transfer and no public announcement or filing is voluntarily made or required regarding such plan during the Initial Lock-Up Period; (xi) transactions in the event of DSAC’s completion of a liquidation, merger, amalgamation, share exchange, reorganization or other similar transaction which results in all of the equityholders of the Surviving Company or Newco, as applicable, having the right to exchange their equity interests of Newco for cash, securities or other property; (xii) Transfers by a party hereto in sell-to-cover transactions to satisfy tax obligations of such party in connection with such party’s receipt of Newco Common Stock following the vesting and settlement of Company RSUs, if applicable; provided, however, that, in the case of the foregoing clauses (i) through (vi) and (xii), for such Transfer to be effective, the transferee must enter into a written agreement with DSAC agreeing to be bound by this Section 3. The transferees with respect to any of the Transfers described in clauses (i) through (vi) of the preceding sentence are referred to herein as “Permitted Transferees.”

 

(c)            For purposes of this Agreement, “Transfer” means the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).

 

(d)            For purposes of this Section 3, “immediate family” shall mean a spouse, domestic partner, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the Shareholder; and “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act.

 

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4.            Representations and Warranties of Purchasers. Each Purchaser represents and warrants to DSAC as follows:

 

(a)            Organization. Such Purchaser is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Purchaser’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of such Purchaser.

 

(b)            Authority. This Agreement has been duly executed and delivered by such Purchaser and, assuming the due authorization, execution and delivery hereof by DSAC and that this Agreement constitutes a legally valid and binding agreement of DSAC, this Agreement constitutes a legally valid and binding obligation of such Purchaser, enforceable against such Purchaser in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies).

 

(c)            Non-Contravention. The execution and delivery of this Agreement by such Purchaser does not, and the performance by such Purchaser of its obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Purchaser’s ability to perform its obligations hereunder, (ii) conflict with or result in a violation of the governing documents of such Purchaser, or (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon such Purchaser), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon such Purchaser’s ability to perform its obligations under this Agreement or to consummate the transactions contemplated thereby.

 

(d)            Legal Proceedings. There is no Action pending against, or to the knowledge of such Purchaser, threatened against such Purchaser or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Purchaser’s performance of its obligations under this Agreement. None of such Purchaser or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin such Purchaser’s performance of its obligations under this Agreement.

 

(e)            Restricted Securities. Such Purchaser understands that the sale of the Backstop Purchase Shares to such Purchaser has not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of such Purchaser’s representations as expressed herein. Such Purchaser understands that the Backstop Purchase Shares are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, such Purchaser must hold the Backstop Purchase Shares indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Such Purchaser acknowledges that DSAC has no obligation to register or qualify the Backstop Purchase Shares for resale, except pursuant to the Registration Rights.

 

5 

 

 

(f)            Accredited Investor. Such Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.

 

(g)            Adequacy of Financing. Such Purchaser has, or will have at the BPS Closing, available to it sufficient clear funds to satisfy its obligations under this Agreement, without restriction or conditions on payment to DSAC except as provided hereunder.

 

(h)            Purchaser’s Knowledge and Skill. Such Purchaser has knowledge, skill and experience in financial, business and investment matters relating to investments of this type and is capable of evaluating the merits and risks of such investment and protecting its interests in connection with the acquisition of Backstop Purchase Shares.

 

(i)            No Other Representations or Warranties. Such Purchaser acknowledges that neither DSAC nor any of its representatives has made or makes any representation or warranty to such Purchaser in respect of DSAC, the Company or the transactions contemplated by the Merger Agreement other than, in the case of DSAC, the representations and warranties contained in this Agreement.

 

5.            Representations and Warranties of DSAC. DSAC represents and warrants to each Purchaser as follows:

 

(a)            Organization. DSAC is duly organized, validly existing and in good standing (where applicable) under the laws of the jurisdiction in which it is incorporated, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within DSAC’s corporate or organizational powers and have been duly authorized by all necessary corporate or organizational action on the part of DSAC.

 

(b)            Authority. This Agreement has been duly executed and delivered by DSAC and, assuming the due authorization, execution and delivery hereof by the Purchasers and that this Agreement constitutes a legally valid and binding agreement of the Purchasers, this Agreement constitutes a legally valid and binding obligation of DSAC, enforceable against DSAC in accordance with the terms hereof (subject only to the effect, if any, of (i) applicable bankruptcy and other similar Applicable Law affecting the rights of creditors generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies).

 

6 

 

 

(c)            Non-Contravention. The execution and delivery of this Agreement by DSAC does not, and the performance by DSAC of its obligations hereunder will not, (i) result in a violation of Applicable Law, except for such violations which would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations hereunder, (ii) conflict with or result in a violation of the governing documents of DSAC, or (iii) require any consent or approval that has not been given or other action (including notice of payment or any filing with any Governmental Authority) that has not been taken by any Person (including under any Contract binding upon DSAC), except where the failure to obtain such consents or to take such actions would not reasonably be expected, individually or in the aggregate, to have a material effect upon DSAC’s ability to perform its obligations under this Agreement or to consummate the transactions contemplated thereby.

 

(d)            Legal Proceedings. There is no Action pending against, or to the knowledge of DSAC, threatened against DSAC or any of its Affiliates, by or before (or that would be by or before) any Governmental Authority or arbitrator that, if determined or resolved adversely in accordance with the plaintiff’s demands, would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under this Agreement. None of DSAC or any of its Affiliates is subject to any Governmental Order that would reasonably be expected, individually or in the aggregate, to prevent or enjoin DSAC’s performance of its obligations under this Agreement.

 

(e)            Capitalization. As of the date hereof and as of immediately prior to the BPS Closing, the authorized share capital of DSAC consists of 180,000,000 Class A Ordinary Shares, 20,000,000 DSAC Class B Ordinary Shares and 1,000,000 preference shares, $0.0001 par value each.

 

(f)            Valid Issuance of Backstop Purchase Shares. The Backstop Purchase Shares, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement and registered in the register of members of DSAC, will be validly issued, fully paid and nonassessable and free of all preemptive or similar rights, liens, encumbrances and charges with respect to the issue thereof and restrictions on transfer, other than restrictions on transfer specified under this Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by such Purchaser.

 

(g)            No General Solicitation. Neither DSAC, nor any of its officers, directors, employees, agents or shareholders has either directly or indirectly, including through a broker or finder, (i) engaged in any general solicitation, or (ii) published any advertisement in connection with the sale of the Backstop Purchase Shares.

 

(h)            No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 5 and in any certificate or agreement delivered pursuant hereto, DSAC has not made, does not make and shall not be deemed to make any other express or implied representation or warranty with respect to DSAC, the sale and purchase of the Backstop Purchase Shares, the transactions contemplated by the Merger Agreement or a potential business combination, and DSAC disclaims any such representation or warranty. Except for the specific representations and warranties expressly made by such Purchaser in Section 4 and in any certificate or agreement delivered pursuant hereto, DSAC specifically disclaims that it is relying upon any other representations or warranties that may have been made by such Purchaser. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 5(h) shall limit any claim or cause of action (or recovery in connection therewith) with respect to fraud.

 

7 

 

 

6.            Trust Account. Each Purchaser acknowledges that DSAC is a blank check company with the powers and privileges to effect a Business Combination. Each Purchaser further acknowledges that, as described in the Prospectus, substantially all of DSAC’s assets consist of the cash proceeds of DSAC’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of DSAC, certain of its public shareholders and the underwriters of DSAC’s initial public offering. Each Purchaser acknowledges that, except with respect to interest earned on the funds held in the Trust Account that may be released to DSAC 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 DSAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, each Purchaser hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agree not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement, any Ancillary Agreement, and any negotiations, contracts or agreements with DSAC or any other Person; provided, however, that nothing in this Section 6 shall amend, limit, alter, change, supersede or otherwise modify the right of such Purchaser to (i) bring any action or actions for specific performance, injunctive and/or other equitable relief or (ii) bring or seek a claim for Damages against DSAC, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account to holders of DSAC Ordinary Shares in accordance with the DSAC Governing Document and the Trust Agreement).

 

7.            BPS Closing Conditions.

 

(a)            The obligation of the Purchasers to purchase the Backstop Purchase Shares at the BPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the BPS Closing of each of the following conditions, any of which, to the extent permitted by Applicable Laws, may be waived by the Purchasers:

 

(i)            the transactions contemplated by the Merger Agreement shall be consummated substantially concurrently with, and immediately following, the purchase of the Backstop Purchase Shares;

 

(ii)            all conditions precedent to Closing set forth in the Merger Agreement shall have been satisfied or waived (other than those conditions which, by their nature, are to be satisfied upon Closing); and

 

(iii)            no provision of Applicable Law, and no judgment, injunction, order or decree of any applicable Governmental Authority, shall prohibit the consummation of the transactions contemplated hereby.

 

8 

 

 

 

(b)            The obligation of DSAC to sell the Backstop Purchase Shares at the BPS Closing under this Agreement shall be subject to the fulfillment, at or prior to the BPS Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by DSAC:

 

(i)            the transactions contemplated by the Merger Agreement shall be consummated substantially concurrently with, and immediately following, the purchase of the Backstop Purchase Shares;

 

(ii)            the representations and warranties of each Purchaser set forth in Section 4 shall have been true and correct as of the date hereof and shall be true and correct as of the BPS Closing, as applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on such Purchaser or its ability to consummate the transactions contemplated by this Agreement;

 

(iii)            Each Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Purchaser at or prior to the BPS Closing; and

 

(iv)            no provision of Applicable Law, and no judgment, injunction, order or decree of any applicable Governmental Authority, shall prohibit the consummation of the transactions contemplated hereby.

 

8.            Termination. This Agreement may be terminated at any time prior to the BPS Closing:

 

(a)            by written consent of each of DSAC, the Purchasers and the Company; or

 

(b)            automatically:

 

(i)            upon the consummation of the Merger without the sale to the Purchasers of any Backstop Purchase Shares (whether or not a Backstop Notice has been delivered); or

 

(ii)            upon the termination of the Merger Agreement, as provided under the terms therein.

 

  9  

 

 

In the event of any termination of this Agreement pursuant to this Section 8, the BPS Purchase Price, if previously paid, and all Purchasers’ funds paid in connection herewith shall be promptly returned to the Purchasers in accordance with written instructions provided by the Purchasers to DSAC, and thereafter this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Purchasers or DSAC and their respective directors, officers, employees, partners, managers, members, or shareholders and all rights and obligations of each party shall cease; providedhowever, that nothing contained in this Section 8 shall relieve either party from liabilities or damages arising out of any fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement. Section 6 shall survive termination of this Agreement.

 

9.            General Provisions.

 

(a)            Notices. Any notice or communication required or permitted hereunder 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, 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 such person may hereafter designate by notice given hereunder:

 

  (i) If to the Purchasers, to:
     
    Maso Capital Investments Limited, Blackwell Partners LLC – Series A and Star V Partners LLC
    8/F Printing House, 6 Duddell Street, Hong Kong
    Attention: Manoj Jain, Chief Executive Officer
    Email: manoj.jain@masocapital.com
     
    with a copy (which shall not constitute notice) to:
     
    Davis Polk & Wardwell LLP
    The Hong Kong Club Building
    3A Chater Road, Hong Kong
    Attention: Miranda So
    James Lin
    Sam Kelso
    Email: miranda.so@davispolk.com
    james.lin@davispolk.com
    sam.kelso@davispolk.com
     
  (ii) If to DSAC, to:
     
    Duddell Street Acquisition Corp.
    8/F Printing House, 6 Duddell Street, Hong Kong
    Attention: Manoj Jain, Chief Executive Officer
    Email: manoj.jain@masocapital.com

 

  10  

 

 

    with a copy (which shall not constitute notice), (1) if prior to Closing, to:
     
    Davis Polk & Wardwell LLP
    The Hong Kong Club Building
    3A Chater Road, Hong Kong
    Attention: Miranda So
    James Lin
    Sam Kelso
    Email: miranda.so@davispolk.com
    james.lin@davispolk.com
    sam.kelso@davispolk.com
     
    or (2) if following Closing to:
     
    FiscalNote Holdings, Inc.
    1201 Pennsylvania Avenue NW
    Washington D.C. 20004
    Attention: Josh Resnik,
    SVP, General Counsel and Chief Content Officer
    Email: josh.resnik@fiscalnote.com
     
    with a copy (which copy shall not constitute notice) to:
     
    Paul Hastings LLP
    875 15th Street, NW Suite 10
    Washington D.C. 20005
    Attention: Brandon Bortner
    James Shea
    Steve Camahort
    Email: brandonbortner@paulhastings.com
    jamesshea@paulhastings.com
    stevecamahort@paulhastings.com

 

(b)            Entire Agreement. This Agreement 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, including any commitment letter entered into relating to the subject matter hereof.

 

(c)            No Third Party Beneficiaries; Exception. Except to the extent expressly set forth in Sections 8(a), 9(e), 9(j) and 9(q), this Agreement shall be binding on, and inure solely to the benefit of, the Parties and their respective successors and assigns, and nothing set forth in this Agreement shall be construed to confer upon or give any Person, other than the Parties and their respective successors and permitted assigns, any benefits, rights or remedies under or by reason of, or any rights to enforce or cause DSAC to enforce, this Agreement; provided, however, that the Company is the intended third party beneficiary of this Agreement.

 

(d)            Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

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(e)            Assignments. Except as otherwise specifically provided herein, no Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other Parties and the Company. Notwithstanding the foregoing, any Purchaser may assign and delegate all or a portion of its rights, interests and obligations hereunder to one or more other persons upon prior written notice to DSAC and the Company; provided,  that (i) such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by any Purchaser, the assignee(s) shall become a Purchaser hereunder and have the rights and obligations and be deemed to make the representations and warranties of a Purchaser provided for herein to the extent of such assignment, and (ii) no such assignment or delegation shall relieve such assigning Purchaser of its obligations hereunder (including its obligation to purchase the Backstop Purchase Shares) and each of the Company and DSAC shall be entitled to pursue all rights and remedies against such Purchaser in respect its obligations subject to the terms and conditions hereof. Any purported assignment or assumption of this Agreement or any right or obligation hereunder in contravention of this Section 9(e) shall be void ab initio.

 

(f)            Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other parties, it being understood that the Parties need not sign the same counterpart.

 

(g)            Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.

 

(h)            Governing Law. This Agreement, and all Actions based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, Applicable Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Applicable Laws of another jurisdiction.

 

  12  

 

 

(i)            Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related to this Agreement or the transactions contemplated hereby shall be brought exclusively in the Delaware Chancery Court and any state appellate court therefrom within the State of Delaware (or, if the Delaware Chancery Court or such state appellate court shall be unavailable, any other court of the State of Delaware or, in the case of claims to which the federal courts have exclusive subject matter jurisdiction, any federal court of the United States of America sitting in the State of Delaware), and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Applicable Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this Section 9(i). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9(I).

 

(j)            Modifications and Amendments. This Agreement may not be amended, modified, supplemented or waived except by an instrument in writing, signed by the party against whom enforcement of such amendment, modification, supplement or waiver is sought; provided, that the prior written consent of the Company shall be required for any material amendments, modifications, waivers or supplements (which shall include amendments which (1) create additional conditionality to the Purchasers’ obligation to purchase the Backstop Purchase Shares, (2) change the DSAC Shareholder Redemption Amount, (3) change the Company’s rights under this Agreement, or (4) or change the economics or delay the timing of any Backstop Notice (including changing the Threshold DSAC Redemptions Amount before which a Backstop Notice can be given under Section 1(b)).

 

(k)            Waiver of Damages. Notwithstanding anything to the contrary contained herein, in no event shall any party be liable for punitive damages in connection with this Agreement; providedhowever, that in no event shall the Purchasers be liable for any form of damages, whether such damages are consequential, special or exemplary, in connection with this Agreement in excess of the sum of the DSAC Shareholder Redemption Amount and any reasonable fees and expenses (including, without limitation, legal fees) associated with the collection of such damages.

 

(l)            Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

 

  13  

 

 

(m)            Expenses. The Parties will each be responsible for their costs and expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal counsel and accountants. DSAC will be responsible for all fees and expenses incurred in connection with transfer agents, stamp taxes and all of The Depository Trust Company’s fees associated with the issuance and resale of the Backstop Purchase Shares and any securities issuable upon conversion or exercise of the Backstop Purchase Shares (in each case, if applicable).

 

(n)            Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. Any reference to any federal, state, local, or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The Parties intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.

 

(o)            Waiver. No waiver by any party hereto of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent occurrence.

 

(p)            Confidentiality. Except as may be required by law, regulation or applicable stock exchange listing requirements, or upon the request of a Governmental Authority, unless and until the transactions contemplated hereby and the terms hereof are publicly announced or otherwise publicly disclosed by DSAC, the Parties shall keep confidential and shall not publicly disclose the existence or terms of this Agreement.

 

  14  

 

 

(q)            Specific Performance; Enforcement. Each Purchaser agrees that irreparable damage may occur to DSAC and the Company in the event any provision of this Agreement is not performed by such Purchaser in accordance with the terms hereof and that DSAC and the Company shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity, without a requirement to post bond or any other security. Subject to the proviso in Section 9(c) and as provided in this Section 9(q), this Agreement may be enforced only by DSAC and the Purchasers, and none of DSAC’s direct or indirect creditors nor any other person that is not a party to this Agreement shall have any right to enforce this Agreement or to cause DSAC to enforce this Agreement.

 

(r)            Further Assurances. Each party will, at the request of the other party, promptly take all actions, and execute and deliver all other agreements and documents, which may be reasonably required to give effect to the terms of and the transactions contemplated by this Agreement.

 

[Signature Page Follows]

 

  15  

 

 

IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date first set forth above.

 

  DUDDELL STREET ACQUISITION CORP.
   
  By: /s/ Manoj Jain
    Name: Manoj Jain
    Title:
     
  Maso Capital Investments Limited
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory
     
  Blackwell Partners LLC - Series A
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory
     
  Star V Partners LLC
   
  By: /s/ Sohit Khurana
    Name: Sohit Khurana
    Title: Authorized Signatory

 

 

 

 

Exhibit 99.1

 

FiscalNote, A Leading AI-Driven Enterprise SaaS Company that Delivers Legal and Regulatory
Data and Insights, Announces Plans to Become Publicly Traded on Nasdaq Via Merger with
Duddell Street Acquisition Corp.

 

· With its mission to connect the world to their governments, FiscalNote is a legal data and analytics company that provides more than 3,000 global subscription customers – including nearly half the Fortune 100 and hundreds of government contracts – with a robust technology platform that collects and analyzes vast amounts of publicly available government information to enable better navigation of uncertainty, opportunity, and risk in an increasingly complex geopolitical world

 

· Transaction values FiscalNote at a pro forma market capitalization of approximately $1.3 billion, representing a multiple of approximately 6.9x enterprise value to 2022E pro forma revenue

 

· Transaction includes a fully committed $100 million PIPE, anchored by Maso Capital, an affiliate of the Sponsor, as well as participation from leading global institutional investors

 

· Maso Capital will fully backstop any redemptions of the Duddell Street trust account for the entire $175 million which combined with the PIPE will provide $275 million of gross proceeds to the combined company, significantly above the minimum cash condition, enhancing closing certainty for the transaction

 

· Existing FiscalNote shareholders -- including technology entrepreneurs Mark Cuban, Jerry Yang, and Steve Case; venture capital investors Green Visor Capital, New Enterprise Associates (NEA), and Winklevoss Capital; and strategic investors S&P Global (NYSE: SPGI) -- will roll 100% of their equity interests and retain approximately 76% ownership of the listed company

 

· Supported by a network of global advisors and investors spanning industry and government, including Adrian Fenty (former mayor of Washington, DC), Carlos Gutierrez (former CEO of Kellogg & former U.S. Secretary of Commerce), Dr. Glenn Hubbard (former Chair, White House Council of Economic Advisors), Gen. Stanley McChrystal (ret.), Tom Monahan (former CEO of CEB), Dr. Jean Rogers (founder and former CEO of SASB), Alec Ross (former Senior Advisor for Innovation to Secretary of State Clinton), Kevin Rudd (former Prime Minister of Australia), Joe Saunders (former CEO of Visa), and Katharine Weymouth (former Publisher of The Washington Post)

 

· Upon completion of the transaction, FiscalNote Co-founder and CEO Tim Hwang, 29, to become youngest Asian-American Founder/CEO on a major U.S. stock exchange

 


WASHINGTON, D.C. – November 08, 2021 – FiscalNote Holdings, Inc., a leading AI-driven enterprise SaaS company that delivers legal and regulatory data and insights, and Duddell Street Acquisition Corp. (Nasdaq: DSAC), a publicly traded special purpose acquisition company, announced today that they have entered into a definitive business combination agreement that will result in FiscalNote becoming a publicly listed company with a pro forma market capitalization of approximately $1.3 billion. Upon closing, the combined company will operate under the FiscalNote name and trade on the Nasdaq under the ticker symbol “NOTE”.

 

With global CEOs and organizations facing increasing regulatory pressure, FiscalNote provides key insights and data on government activity and impact by leveraging proprietary artificial intelligence, machine learning, and other advanced technologies embedded in its workflow software to collect and analyze global legislative, regulatory, and geopolitical data for clients around the world. Today’s information-overloaded world makes it challenging for teams to quickly identify, track, and report relevant policy and regulatory updates efficiently as critical risks and opportunities develop.

 

 

 

 

“When we founded FiscalNote in 2013, we set out to build a category creating technology company that would change the way organizations understand and act on the legal, policy, and regulatory issues that mattered most to them,” said FiscalNote Co-founder and CEO, Tim Hwang.

 

“Legal and geopolitical issues have become even more inextricably linked to markets, and it is crucial that organizations have access to key information about the actions of regulators and policymakers to proactively navigate and manage the volume and velocity of regulatory change that will impact them. We look forward to this transaction accelerating our efforts in both U.S. and global markets to build additional data feeds and software to provide further transparency to the regulated sectors of the future, especially as wide-ranging and complex regulatory issues emerge in areas such as cryptocurrencies, the gig economy, cannabis, autonomous and electric vehicles, online sports betting, ESG, and other sectors that are changing the landscape for how companies around the world operate.”

 

FiscalNote has more than 3,000 subscription customers across a diverse range of blue-chip global enterprises, small and medium-sized businesses (SMBs), non-profits, and the public sector, including 3M, AstraZeneca, Blackstone, FedEx, Lyft, Microsoft, National Association of Realtors, Nestlé, Netflix, Northrop Grumman, Peloton, Tesla, Uber, Zillow, the White House, the United States Congress, the United States Supreme Court, and major US federal agencies such as the Department of Defense, CDC, NIH, and the Federal Reserve.

 

FiscalNote’s user-friendly cloud based software and information feeds—which leverage patented artificial intelligence capabilities to collect and analyze vast amounts of legislative and regulatory data from international, federal, state, and municipal governments—power a clear value proposition for government agencies seeking information to help with initiatives such as securing budgets and supporting diplomacy, enterprises seeking to navigate increasingly complex regulatory issues such as ESG and data privacy, and non-profits and K Street seeking to advocate on behalf of their interests to elected officials. FiscalNote’s automated technology enables its data and information to be sold on a subscription basis to multiple customers, supporting high profit margins over time.

 

The total addressable market of legal and regulatory information solutions globally was approximately $37 billion in 2020, according to Outsell, a leading research and advisory firm. The market is driven by strong structural tailwinds, including the proliferation of regulatory complexity, demand for workflow efficiency and automation, need for aggregation and standardization, and the democratization of analytical capabilities in law.

 

“FiscalNote is a category creator led by a visionary and experienced leadership team poised to scale with multiple organic and inorganic growth vectors. Access to public markets will lower the company’s cost of capital and accelerate its ability to drive innovation, as well as execute strategically attractive and value accretive M&A.” said Manoj Jain, CEO of Duddell Street Acquisition Corp., and Co-Chief Investment Officer of Maso Capital. “We believe this merger is highly compelling and asymmetric, driven by a clear path to profitability with an anticipated 15-20% organic revenue growth rate, 80% gross margins, and 90% recurring revenue model. With a strong track record of value creation through acquisitions and M&A integration, we are confident FiscalNote will be further positioned to disrupt, consolidate, and provide transformative technology applications to the LegalTech sector. In today’s digitized world, insights drawn from data collection, aggregation, and analysis are significant and strategically valuable.”

 

 

 

 

FiscalNote is one of the largest technology companies headquartered in Washington, D.C. with operations in eight countries and approximately 650 employees globally.

 

Transaction Overview

 

The transaction implies a pro forma market capitalization of approximately $1.3 billion for the combined company, representing a multiple of approximately 6.9x enterprise value to 2022E pro forma revenue. Current FiscalNote equity holders will roll 100% of their equity interests into the combined company and will retain approximately 76% ownership.

 

Existing FiscalNote equity holders will be under a lock-up of at least six months from the closing of the transaction and have the potential to receive an earnout of additional shares of common stock of the combined company if certain stock price targets are met as set forth in the definitive business combination agreement.

 

Concurrently with the consummation of the proposed business combination, investors, anchored by Maso Capital, have committed to purchase $100 million of common stock of the combined company in a fully committed private placement at $10.00 per share. Upon closing, the transaction will provide approximately $275 million of gross proceeds to the combined company, comprised of approximately $175 million of cash held in the trust account of Duddell Street, with redemptions of the trust account backstopped by Maso Capital, and $100 million in the fully committed PIPE, with participation from leading global institutional investors. Gross proceeds are expected to far exceed the minimum cash condition of $190 million as set forth in the definitive business combination agreement.

 

The proceeds from the transaction will further strengthen FiscalNote’s ability to execute on significant near-term organic and inorganic growth opportunities globally as it continues to develop and deliver products to serve the regulated industries of the future.

 

The Boards of Directors of both FiscalNote and Duddell Street have each unanimously approved the proposed business combination, which is expected to be completed in the first quarter of 2022, subject to, among other things, the approval of the business combination by Duddell Street’s and FiscalNote’s shareholders, the concurrent PIPE transaction, satisfaction of the conditions stated in the definitive business combination agreement and other customary closing conditions, including that the U.S. Securities and Exchange Commission (the “SEC”) completes its review of the registration statement on Form S-4 and the proxy statement/prospectus that Duddell Street will file with the SEC, the receipt of certain regulatory approvals, and approval by The Nasdaq Stock Market to list the securities of the combined company.

 

Advisors

 

J.P. Morgan acted as financial advisor to FiscalNote. Citi and BTIG, LLC acted as capital markets advisors to Duddell Street. Citi and J.P. Morgan served as joint placement agents for the PIPE financing. Davis Polk & Wardwell LLP is serving as legal advisor to Duddell Street while Paul Hastings LLP is serving as legal advisor to FiscalNote. Shearman & Sterling LLP is serving as legal advisor to Citi and J.P. Morgan.

 

Investor Presentation

 

FiscalNote and Duddell Street have posted an investor presentation that can be accessed here.

 

A copy of the investor presentation as narrated by management can be found here: http://www.netroadshow.com/nrs/home/#!/?show=cbb84d80.

 

 

 

 

Duddell Street will file a Current Report on Form 8-K, which includes a copy of the business combination agreement and the investor presentation, with the Securities and Exchange Commission and is available at www.sec.gov.

 

About FiscalNote

 

FiscalNote is a leading global technology provider of legal and policy data and insights. By combining AI capabilities, expert analysis, and legislative, regulatory, and geopolitical data, FiscalNote is reinventing the way that organizations minimize risk and capitalize on opportunity.

 

Home to CQ, Roll Call, Oxford Analytica, and VoterVoice, FiscalNote empowers clients worldwide to monitor, manage, and act on the issues that matter most to them. To learn more about FiscalNote and its family of brands, visit FiscalNote.com and follow @FiscalNote.

 

About Duddell Street Acquisition Corp.

 

Duddell Street Acquisition Corp. was formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Duddell Street is sponsored by Hong Kong-based hedge fund Maso Capital. Since inception, Maso Capital has invested in more than one thousand companies and situations across multiple sectors and geographies. Leveraging its stature and reputation in Hong Kong and its experienced investment team, Maso Capital has had investments in a number of TMT, healthcare, fintech and consumer companies in the region. For more information, please visit DSAC.co.

 

Additional Information and Where to Find It

 

For additional information on the proposed business combination, see Duddell Street ’s Current Report on Form 8-K, which will be filed concurrently with this press release. In connection with the proposed business combination, Duddell Street intends to file relevant materials with the Securities and Exchange Commission (“SEC”), including a registration statement on Form S-4, which will include a proxy statement/prospectus of Duddell Street, and will file other documents regarding the proposed business combination with the SEC. Duddell Street’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 and documents incorporated by reference therein filed in connection with the proposed business combination, as these materials will contain important information about FiscalNote, Duddell Street and the proposed business combination. Promptly after the Form S-4 is declared effective by the SEC, Duddell Street will mail the definitive proxy statement/prospectus and a proxy card to each shareholder entitled to vote at the meeting relating to the approval of the business combination and other proposals set forth in the proxy statement/prospectus. Before making any voting or investment decision, investors and shareholders of Duddell Street are urged to carefully read the entire registration statement and proxy statement/prospectus, when they become available, and any other relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important information about the proposed business combination. The documents filed by Duddell Street with the SEC may be obtained free of charge at the SEC’s website at www.sec.gov.

 

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

 

 

 

 

Participants in the Solicitation

 

Duddell Street and its directors and executive officers may be deemed participants in the solicitation of proxies from its shareholders with respect to the business combination. A list of the names of those directors and executive officers and a description of their interests in Duddell Street will be included in the proxy statement/prospectus for the proposed business combination when available at www.sec.gov. Information about Duddell Street’s directors and executive officers and their ownership of Duddell Street shares is set forth in Duddell Street’s prospectus, dated prospectus is October 28, 2020. Other information regarding the interests of the participants in the proxy solicitation will be included in the proxy statement/prospectus pertaining to the proposed business combination when it becomes available. These documents can be obtained free of charge from the source indicated above.

 

FiscalNote and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of Duddell Street 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.

 

Cautionary Statement Regarding Forward-Looking Statements

 

This communication contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements include, but are not limited to, statements about future financial and operating results, plans, objectives, expectations and intentions with respect to future operations, products and services; and other statements identified by words such as “will,” “are expected to,” “is anticipated,” “estimated,” “believe,” “intend,” “plan,” “projection,” “pro forma,” “outlook” or words of similar meaning. These forward-looking statements include, but are not limited to, statements regarding FiscalNote’s industry and market sizes, future opportunities for FiscalNote and Duddell Street, FiscalNote’s estimated future results and the proposed business combination between Duddell Street and FiscalNote, including pro forma market capitalization, pro forma revenue, the expected transaction and ownership structure and the likelihood, timing and ability of the parties to successfully consummate the proposed transaction. Such forward-looking statements are based upon the current beliefs and expectations of Duddell Street’s and FiscalNote’s management and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are difficult to predict and generally beyond Duddell Street’s or FiscalNote’s control. Actual results and the timing of events may differ materially from the results anticipated in these forward-looking statements. Except as required by law, Duddell Street and FiscalNote do not undertake any obligation to update or revise any forward-looking statements whether as a result of new information, future events or otherwise.

 

Contacts:

 

Media

FiscalNote

Mike Stubbs

press@fiscalnote.com

 

 

 

 

Investors

ICR, Inc. for FiscalNote

Sean Hannan
IR@fiscalnote.com

 

Duddell Street Acquisition Corp.

Sam Joshi

IR@masocapital.com 

 

 

 

Exhibit 99.2

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Management Presentation NOVEMBER 2021 | STRICTLY PRIVATE AND CONFIDENTIAL

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2 Disclaimer This presentation contains proprietary and confidential information of FiscalNote Holdings, Inc (“FiscalNote”) and Duddell Street Acquisition Corp. (NASDAQ: DSAC,“Duddell Street”), and the entire content should be considered “Confidential Information.” Neither Duddell Street, FiscalNote, Citigroup Global Markets Inc. (“Citi”), J.P. Morgan Securities LLC (together with Citi, the “Placement Agents”) nor any of their respective affiliates, representatives, partners, directors, officers, employees, advisers or agents makes any representation or warranty, express or implied, as to the accuracy or completeness of the information contained in this presentation or any other written, oral or other communications transmitted or otherwise made available to any party in the course of its evaluation of the transactions contemplated in this presentation. To the full extent permitted by law, no responsibility or liability whatsoever is accepted by any such person for the accuracy or sufficiency thereof or for any errors, omissions or misstatements, negligent or otherwise, relating thereto. This presentation is not intended to be all-inclusive or to contain all the information that a person may desire in considering an investment in Duddell Street or FiscalNote and is not intended to form the basis of any investment decision in Duddell Street or FiscalNote. You should consult your own legal, regulatory, tax, business, financial and accounting advisors to the extent you deem necessary, and you must make your own investment decision and perform your own independent investigation and analysis of an investment in Duddell Street or FiscalNote and the transactions contemplated in this presentation. By participating in this presentation, you expressly agree to keep confidential this presentation and all otherwise non-public information disclosed by us, whether orally or in writing, during this presentation or in these presentation materials. You also agree not to distribute, disclose or use such information for any purpose, other than for the purpose of evaluating your participation in the potential financing of the transactions contemplated in this presentation and to return to FiscalNote and Duddell Street, delete or destroy this presentation upon request. By participating in this presentation, you acknowledge that you are (i) 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 (ii) familiar with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the "Exchange Act"), and that you 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 relates to the potential financing of a portion of the transactions contemplated in this presentation through a private placement of equity securities. This presentation shall not constitute a “solicitation” as defined in Section 14 of the Exchange Act. This presentation shall neither constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which the offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This presentation is not an offer, or a solicitation of an offer, to buy or sell any investment or other specific product. Any offering of securities (the “Securities”) will not be registered under the Securities Act of 1933, as amended (the “Act”), and will be offered as a private placement to a limited number of institutional “accredited investors” as defined in Rule 501(a)(1), (2), (3) or (7) under the Act and “Institutional Accounts” as defined in FINRA Rule 4512(c). Accordingly, the Securities must continue to be held unless a subsequent disposition is exempt from the registration requirements of the Act. Investors should consult with their counsel as to the applicable requirements for a purchaser to avail itself of any exemption under the Act. The transfer of the Securities may also be subject to conditions set forth in an agreement under which they are to be issued. Investors should be aware that they might be required to bear the final risk of their investment for an indefinite period of time. Neither FiscalNote nor Duddell Street is making an offer of the Securities in any state where the offer is not permitted. The information contained in this presentation is only addressed to and directed at persons in member states of the European Economic Area and the United Kingdom (each a “Relevant State”) who are “qualified investors” within the meaning of the Prospectus Regulation (Regulation (EU) 2017/1129) (“Qualified Investors”). In addition, in the United Kingdom, the presentation is being distributed only to, and is directed only at, Qualified Investors who are persons (i) having professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”) (ii) falling within Article 49(2)(a) to (d) of the Order, or (iii) to whom it may otherwise lawfully be communicated (all such persons together being referred to as “Relevant Persons”). The information must not be acted on or relied on (i) in the United Kingdom, by persons who are not Relevant Persons, and (ii) in any Relevant State, by persons who are not Qualified Investors. Any investment or investment activity to which the information relates is available only to or will be engaged in only with, (i) Relevant Persons in the United Kingdom, and (ii) Qualified Investors in any Relevant State. This presentation is intended solely for the purposes of familiarizing investors. To the extent the terms of any potential transaction are included in this presentation, those terms are included for discussion purposes only. NEITHER THE SECURITIES AND EXCHANGE COMMISSION (“SEC”) NOR ANY STATE OR TERRITORIAL SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR DETERMINED IF THIS PRESENTATION IS TRUTHFUL OR COMPLETE. Use of Data This presentation contains information concerning FiscalNote’s products, services and industry, including market size and growth rates of the markets in which FiscalNote participates, that are based on industry surveys and publications or other publicly available information, other third-party survey data and research reports. This information involves many assumptions and limitations; therefore, there can be no guarantee as to the accuracy or reliability of such assumptions and you are cautioned not to give undue weight to this information. Further, no representation is made as to the reasonableness of the assumptions made within or the accuracy or completeness of any projections or modeling or any other information contained herein. Any data on past performance or modeling contained herein is not an indication as to future performance. This modelling data is subject to change. Neither FiscalNote nor Duddell Street has independently verified this third-party information. Similarly, other third-party survey data and research reports commissioned by FiscalNote or Duddell Street, while believed by FiscalNote and Duddell Street to be reliable, are based on limited sample sizes and have not been independently verified by FiscalNote or Duddell Street. In addition, projections, assumptions, estimates, goals, targets, plans and trends of the future performance of the industry in which FiscalNote operates, and its future performance, are necessarily subject to uncertainty and risk due to a variety of factors, including those described above. These and other factors could cause results to differ materially from those expressed in the estimates made by independent parties and by FiscalNote and Duddell Street. None of Duddell Street, FiscalNote and the Placement Agents assumes any obligation to update the information in this presentation. Use of Projections The financial, operational, industry and market projections, estimates and targets in this presentation are forward-looking statements that are based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond Duddell Street’s and FiscalNote’s control. While all financial, operational, industry and market projections, estimates and targets are necessarily speculative, Duddell Street and FiscalNote believe that the preparation of prospective financial, operational, industry and market information involves increasingly higher levels of uncertainty the further out the projection, estimate or target extends from the date of preparation. FiscalNote’s independent auditors have not studied, 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 provided any other form of assurance with respect thereto for the purpose of this presentation. The assumptions and estimates underlying the projected, expected or target results are inherently uncertain and are subject to a wide variety of significant business, economic, regulatory and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the financial, operational, industry and market projections, estimates and targets, including assumptions, risks and uncertainties described in “Forward Looking Statements” below. The inclusion of financial, operational, industry and market projections, estimates and targets in this presentation should not be regarded as an indication that Duddell Street and FiscalNote, or their representatives, considered or consider such financial, operational, industry and market projections, estimates and targets to be a reliable prediction of future events. Further, investors should note that the projections or revenue targets for FY2022 to FY 2025 are based on management estimates of both organic growth and growth via acquisitions, inclusive of acquisitions in the Company's pipeline. These acquisitions may not be consummated, or if they are, they may not be done on terms that the Company currently expects. As a result, investors should not place undue reliance on projections or the revenue targets for FY2022 to FY2025.

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3 Disclaimer (Cont’d) Financial Information, Non-GAAP Measures The financial information and data contained in this presentation is unaudited and does not conform to Regulation S-X promulgated under the Act. Accordingly, such information and data may not be included in, may be adjusted in or may be presented differently in, any proxy statement or registration statement to be filed by Duddell Street with the SEC. This presentation contains “non-GAAP financial measures” that are financial measures that either exclude or include amounts that are not excluded or included in the most directly comparable measures calculated and presented in accordance with U.S. generally accepted accounting principles (“GAAP”). Specifically, FiscalNote makes use of the non-GAAP financial measure Adjusted EBITDA. This is not a recognized term under GAAP and should not be considered as an alternative to net income (loss) as a measure of financial performance or cash provided by operating activities as a measure of liquidity, or any other performance measure derived in accordance with GAAP. Additionally, Adjusted EBITDA is not intended to be a measure of free cash flow available for management’s discretionary use as Adjusted EBITDA does not consider certain cash requirements such as interest payments, tax payments and debt service requirements. The presentations of Adjusted EBITDA has limitations as an analytical tool and should not be considered in isolation, or as a substitute for analysis of our results as reported under GAAP. See Appendix for a reconciliation to the most directly comparable GAAP measures . Because not all companies use identical calculations, the presentations of Adjusted EBITDA may not be comparable to other similarly titled measures of other companies and can differ significantly from company to company. Additional Information If the contemplated business combination is pursued, Duddell Street will be required to file a preliminary and definitive proxy statement, which may be a part of a registration statement, and other relevant documents with the SEC. Shareholders and other interested persons are urged to read the preliminary and definitive proxy statement, prospectus, any other relevant documents filed with the SEC and any amendments thereto when they become available because they will contain important information about Duddell Street, FiscalNote and the contemplated business combination. Shareholders will be able to obtain a free copy of the proxy statement (when filed), as well as other filings containing information about Duddell Street, FiscalNote and the contemplated business combination, without charge, at the SEC’s website located at www.sec.gov. Duddell Street and its directors and executive officers may be deemed to be participants in the solicitation of proxies from Duddell Street’s shareholders in connection with the proposed transaction. A list of the names of such directors and executive officers and information regarding their interests in the business combination will be contained in the proxy statement/prospectus when available. This presentation does not contain all the information that should be considered in the contemplated business combination and shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the contemplated business combination. It is not intended to form any basis of any investment decision or any decision in respect to the contemplated business combination. The definitive proxy statement will be mailed to shareholders of Duddell Street as of a record date to be established for voting on the contemplated business combination when it becomes available. Forward Looking Statements Certain statements in this presentation may constitute “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements include, but are not limited to, statements with respect to (i) FiscalNote’s projected operational performance, including relative to its competitors, (ii) trends in the enterprise information services and legal regulatory information markets, (iii) FiscalNote’s strategies and targets for customer growth, (iv) FiscalNote’s strategies and plans for mergers and acquisitions, and (v) other statements regarding Duddell Street’s or FiscalNote’s expectations, hopes, beliefs, intentions or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward- looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. You should carefully consider the risks and uncertainties described in the “Risk Factors” section of Duddell Street’s registration statement on Form S-1, any proxy statement/prospectus relating to the contemplated business combination, which is expected to be filed by Duddell Street with the SEC, other documents filed by Duddell Street from time to time with the SEC, and any risk factors made available to you in connection with Duddell Street, FiscalNote and the contemplated business combination. These forward-looking statements involve a number of risks and uncertainties (some of which are beyond the control of Duddell Street and FiscalNote), and other assumptions, that may cause FiscalNote’s or Duddell Street’s actual results or performance to be materially different from those expressed or implied by these forward-looking statements. Such risks, uncertainties and assumptions include, but are not limited to, the risks, uncertainties and assumptions that will be described in any proxy statement/prospectus relating to the contemplated business combination, as well as the following: changes in domestic and foreign businesses, government regulation, and market, financial, political, and legal conditions; the risk that FiscalNote may be unable to successfully commercialize its products and services; the effects of competition on FiscalNote’s business; FiscalNote’s and Duddell Street’s exposure to litigation claims and other loss contingencies; FiscalNote’s ability to protect patents, trademarks, and other intellectual property rights; the uncertainty of the projected financial information with respect to FiscalNote; disruptions and other impacts to FiscalNote’s business as a result of the continuing COVID-19 pandemic and other global health or economic crises; changes in customer demand; the parties may be unable to successfully or timely consummate the contemplated business combination, including the risk that any regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the contemplated business combination or that the approval of the shareholders of Duddell Street or stockholders of FiscalNote is not obtained; failure to realize the anticipated benefits of the contemplated business combination; and the amount of redemption requests made by Duddell Street’s shareholders. There may be additional risks that neither Duddell Street nor FiscalNote presently know or that Duddell Street and FiscalNote currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. You should not take any statement regarding past trends or activities as a representation that the trends or activities will continue in the future. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Duddell Street and FiscalNote assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Duddell Street nor FiscalNote gives any assurance that either Duddell Street or FiscalNote will achieve its expectations. This presentation is not intended to constitute, and should not be construed as, investment advice. Trademarks FiscalNote and Duddell Street own or have rights to various trademarks, service marks and trade names that they use in connection with the operation of their respective businesses. This presentation may also contain trademarks, service marks, trade names and copyrights of third parties, which are the property of their respective owners. The use or display of third parties’ trademarks, service marks, trade names or products in this presentation is not intended to, and does not imply, a relationship with FiscalNote or Duddell Street, or an endorsement or sponsorship by or of FiscalNote or Duddell Street. Solely for convenience, the trademarks, service marks, trade names and copyrights referred to in this presentation may appear without the TM, SM, * or © symbols, but such references are not intended to indicate, in any way, that FiscalNote or Duddell Street will not assert, to the fullest extent under applicable law, their rights or the right of the applicable licensor to these trademarks, service marks, trade names and copyrights.

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4 Today’s Speakers Tim Hwang CEO & Co-Founder Jon Slabaugh Chief Financial Officer & SVP of Corporate Development Reed Fawell Chief Revenue Officer & Senior VP Manoj Jain Chairman, CEO & Co-Chief Investment Officer Co-Founder & Co-Chief Investment Officer Director Nominee1 Note: (1) Contingent on CFIUS clearance.

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5 Transaction Overview AI/ML and data-driven enterprise SaaS company that delivers global legal, regulatory, and policy insights and analytics FiscalNote and DSAC Are Merging To Create A Leading Legal and Regulatory SaaS Platform Good opportunity to unlock potential and maximize value Led by talented and visionary management team Clear pathway to create organic and inorganic value post merging At an operating / growth inflection point with ability to drive improved financial performance Would benefit from a powerful public – private valuation arbitrage Well-positioned for strong and compelling growth globally Robust public company governance and framework DSAC Acquisition Criteria Note: (1) Subject to second SEC review period. (2) Refer to Transaction Summary on page 41 for details. Target • FiscalNote Holdings, Inc. (Proposed ticker - NASDAQ: NOTE) SPAC Size • $175MM PIPE Size • $100M fully committed PIPE • Anchored by Maso Capital, an affiliate of the Sponsor • Accelerated PIPE share registration1 Valuation • Enterprise value of $1.2BN (Post DeSPAC)2 • Implies EV / FY22 / 23PF Sales2 of 6.87x / 4.64x based on management target of $173MM / $256MM run-rate revenue in FY22 / 23 Backstop • Maso Capital, an affiliate of the sponsor, will backstop any redemptions from the trust account, providing $275MM of gross proceeds Voting Condition • Maso Capital holds ~23% of equity interest ($40MM of $175MM) and ~38% of voting shares in DSAC • Will vote in favor of the transaction • ~15% of voting shares in DSAC held by public will be required to vote in favor of the transaction in order for it to be approved Min Cash Condition • $190MM Target Closing • 1Q 2022

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6 Hong Kong based multi-strategy investment firm since 2012 60+ years of combined investment, sourcing and advisory experience of management team across major geographies Deployed over $20 billion of transaction capital since inception Capital markets expertise in pricing IPOs, secondary blocks and private placements Bridge gap between private / public markets Expertise to drive value in public market environment Active global SPAC PIPE participant Broad Universe of Candidates TMT | Fintech | Logistics | Proptech | Solar | Consumer | Retail | BioTech | Clean Energy Round 2: 20+ Round 1: 100+ Due Diligence Process2 Sponsor Overview Primarily held by “uncorrelated” shareholder base therefore reducing SPAC arbitrage risk Maso Capital - anchored IPO, holding $40MM of $175MM SPAC In total, Maso Capital holds ~38% of votes – reduces vote risk CEO Manoj Jain will join the board of the public entity as a Director1 Maso Capital has right to appoint an additional Independent Director1 to the board of the public entity Maso Capital will backstop SPAC trust account from redemptions PIPE anchor Note: (1) Contingent on CFIUS clearance; (2) Davis Polk, Grant Thornton and Blackpeak are third-party advisers to Duddell Street, who has conducted due diligence on FiscalNote on its own behalf only. Mercer is an advisor to FiscalNote.

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7 Agenda Investment Highlights Executive Summary Valuation Overview Financial Snapshot Appendix

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8 Executive Summary

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9 9 Technology Delivering Critical Legal Data and Insights in an Uncertain World

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10 Note: (1) Former Chairman and CEO; (2) PwC Global CEO Survey (https://www.pwc.com/gx/en/ceo-survey/2020/reports/pwc-23rd-global-ceo-survey.pdf). Boards and CEOs Face Increasing Global Regulations “…I don’t know if this is the end-all but clearly regulation relief would…help to grow private investment in US infrastructure” Regulatory Pressure — Allen’s interview, 20171 “…our business may be impacted by the adoption of new tax legislation…if we fail to… subject to significant sanctions” — Bradway’s letter to shareholders, 2020 “…legal ambiguity on the status of independent workers makes it difficult for platforms like Uber …” — Khosrowshahi’s email, 2021 “…People still want regulation, security amid tech competition… with all these competitors…we don't forget the basic principles” — Moynihan’s interview, 2019 ~1,500 Global CEOs say regulatory and policy issues are the biggest threats to their businesses2

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11 The FiscalNote Solution Embedded Workflows to Manage Regulatory Risk Workflow Unrivaled Information & Global Need-to-Know Policies Data AI-Powered Actionable Intelligence Analytics Secure Government Funding Minimize Costs Mitigate Reputational Risk Generate Incremental Revenue $6.4TN US Federal Govt. spending1 200k+ US bills introduced annually3 500k+ elected officials in the US2 1,300+ adopted Acts in 2020 in the EU4 €173BN EU budget in commitments5 123MM+ daily pleadings in China6 Note: (1) Ten Thousand Commandments, based on $1.9 trillion regulatory cost plus $4.4 trillion federal outlays share of 2019 GDP of $21.5 trillion; (2) FAVP.com; (3) onelegal.com, during 2019-2020 sessions; (4) EUR-Lex Statistics, only including basic Acts for 2020; (5) Based on the 2020 EU budget in commitments, which is the ability to contract legal obligations up to the ceiling in 2020. Sourced from Council of the European Union; (6) China Judgements Online (https://wenshu.court.gov.cn/), as of August 29, 2021. Differentiated & Mission-Critical Commentary on Policy Research American retailers claim tariffs on Chinese goods hurt business during pandemic Exports from Ireland to Great Britain soar in post-Brexit trade imbalance Combining Data, Analytics & Workflow to Drive Actionable Insights

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12 Category Creator Legal and Policy Crucial technology and embedded workflows on the desks of the world’s decision makers HR Sales Finance

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13 3,000+ Subscription customers3 8 Years in operation5 ~650 Personnel globally6 $173MM 2022PF revenue4 with strong subscription business 101% NRR7 for subscription products in Q2’218 4.2x LTV/ CAC9 for subscription products In 2020 91% 1H2021 revenue from subscription Scale Player with Global Footprint Austin Baton Rouge Washington DC New York Singapore Oxford Brussels Gurugram Hong Kong Seoul Sydney 3,3001 data sources 462 countries 12 locations Note: (1) Core legacy products as of June 30, 2021; (2) Denotes countries with data coverage in one or more platforms; (3) Number of customers with active subscription revenue as of June 30, 2021, including all acquired entities; (4) Refers to the 2022 revenue, pro forma’d with full year run rating of acquisitions made that year. (5) Denotes the years operating as FiscalNote. Acquired companies have maintained decades long client relationships; (6) As of Sep 30, 2021; (7) Net Revenue Retention (“NRR”) is defined as the percentage of recurring revenue retained from existing customers over a defined period of time, including downgrades and reductions, plus expansions. Not including data from FactSquared or any acquired company from 2021; (8) Calculated as percentage of retained subscription revenue from the beginning of Q2’21 to the end of Q2’21; (9) LTV refers to lifetime value and CAC refers to customer acquisition costs. 100% US House & Senate Coverage >50 of Fortune 100 are current customers Madison

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14 Note: (1) Senate Appropriations Committee press release; (2) House Committee on Appropriations press release; (3) Office of the Director of National Intelligence press release; (4) Nestle 2020 Annual Report; (5) FedEx 2020 Annual Report; (6) Microsoft 2020 Annual Report; (7) National Education Association website; (8) American Farm Bureau Federation website; (9) NRF website. Clear Value Proposition Secure government funding to support national security and engage in global diplomacy Navigate increasingly complex regulatory landscape on key issues such as ESG, data privacy and anti-trust, and streamline access to legal information Advocating to elected officials to ensure access to funding and protection of interests $695BN1 $64BN2 $63BN3 Government Agencies Corporates Non-Profits 2020 Budget Allocation 2020 Revenue Members $94BN4 $69BN5 $143BN6 ~3MM7 ~6MM8 ~1.4MM9 Cost Saving Funding Access Cut back on contracts with 57 trade associations Achieved an annual cost savings of $4 million Leveraged more than 365k grassroots activities through advocacy solutions Retained $300 million in federal arts & humanities funding Connecting policy-making participants to a 360 degree view of critical information and data

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15 Resilience and Relevance During COVID-19 FiscalNote helps public and private sector clients navigate unpredictable issues in an increasingly uncertain world Public Sector Customers Private Sector Customers

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16 Idea to Market Leader Idea (2013-2017) $400MM+3 (2025PF) 80%+ Revenue CAGR $173MM2 (2022PF) Scale (2017-Present) Market Leader (Future) $8MM1 30%+ Potential Revenue CAGR Growth Capital Motel 6 in Silicon Valley to Washington, DC Multiple Acquisitions Seed & Early Investors Mark Cuban Jerry Yang EU Regulatory Intelligence Legislative & Political Info AI-Powered Transcription Geographic Expansion4 Organic Growth Increase customer LTV Accelerate logo bookings New product development International expansion Adjacent market entry Market Consolidation Value accretive targets Grassroots Advocacy Tool Geopolitical Intelligence Launched first product to bring clarity to disparate government data Access to Public Markets Lower cost of capital Steve Case Technology Roots + Policy Expertise + Deal-Making Capacity Note: (1) Audited revenue from 2017; (2) Pro forma 2022 revenue, including full year effect of acquisitions under LOI and in pipeline; (3) Pro forma 2025 revenue, including full year effect of pipeline M&A targets. Target is based on management expectations regarding acquisition pipeline. See "Disclaimer--Use of Projections“; (4) Refers to locations where FiscalNote currently collects data and/or content from.

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17 Investment Highlights

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18 Investment Highlights Massive Market Opportunity AI and Data-Driven Workflow Diverse Blue Chip Customer Base Multiple Avenues of Organic Growth Prolific M&A Powerhouse Visionary Management Team

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19 Large and Expanding Market Opportunity 1 Clear Market Tailwinds Democratization of analytical capabilities in law Need for aggregation and standardization Demand for workflow efficiency and automation Lack of systems to track, assess and report Proliferation of regulatory complexity Legal & Regulatory Info TAM: $37BN1 Enterprise Info Solutions TAM: $314BN1 FiscalNote’s Approaches to Drive Long-term Growth Increasing Sales Capacity 1 Stronger Land & Expand 2 International Market Growth - Vast Opportunity in EU & APAC 3 New Logo Acquisition from Additional Segments 4 Expansion of Data Assets & Proprietary Technology 5 62%2 YoY new logo bookings in Q2 2021 Note: (1) Outsell: Market landscape (as of August 12, 2021), denotes TAM of 2020; (2) Total Contract Value of both subscription and one-time revenue that were booked from new clients in quarter, excluding smaller scale revenue streams such as photo licensing and books sales. Does not include new bookings from acquired companies in 2021. Increasing use of data and information in decision-making Further Investments to Drive Retention & Customer Relationships 6

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20 Better Experience with More Usage Policy Monitoring Automated Reporting Individualized Alerting Event Predictions Activity-Driven Recommendations Stakeholder Management & Collaboration Revenue & Funding Generation Research & Analytics Streamlined Compliance Process Standardize Global Legislation Social Media Collect AI and Data-Driven Workflow 2 Proprietary Data Ingestion & Processing Workflow Tools to Take Action, Measure, & Report Patented1 AI-Enabled Core AI-Driven Network Effects Built on Top of Modern Cloud Technologies SELF- REINFORCING Scalable platform to add new products, reduce time to market, build modern interfaces and create competitive differentiation Note: (1) 6 Patents issued, 2 patents allowed, 6 patents pending to date across various technology systems in FiscalNote’s portfolio of companies as of 6/30/2021.

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21 Building blocks for FiscalNote’s vision to become a next generation data company leveraging AI to rapidly deliver new datasets and enhance workflow tools Proprietary Technology Stack 2 FiscalNote’s Proprietary Technology… …Leading to Superior Outcomes for Customers Connect Data Cross the silos between data sets and professionals to create relationships between structured and unstructured data Augment Workflows Integrate AI into existing human-driven processes with appropriate level of automation to reduce time and cost Defensible Technology Technical complexities in legal space require deep technology expertise and policy and legal expertise Data Network Effects Products’ value increases via insights gained by automatically mapping usage data Structured, standardized, and automated industry classification and subdocument labeling Data processor synthesizes raw information into standardized format Analysis and trends summarization allows for identification of potentially relevant data and content that may not have matched user-specific query Powerful ingestion engine with query suggestion and expansion enables high-speed collection and validation of data

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22 These tools are essential so we have our finger on the global pulse of public policy activities. People were blown away by how quickly I learned about the bill and how fast I was able to act. Without FiscalNote’s advocacy tools, we would not have been able to get our message out. Our members and the public could make their voices heard in 30 seconds. Sifting Through the Chaos 2 Note: (1) 94% of US federal and state bills that passed were predicted to pass by FiscalNote AI; (2) Since 2018; (3) Pertaining to actions taken in the FiscalNote application. User-Friendly Dashboards Collaborative capabilities and easy access to workflows and data Actionable Workflows Certified by 1 billion advocacy messages2 Predictive Analytics Proprietary regulatory analysis and 94% accuracy1 on likelihood of legislation passing Comprehensive Data Searching, reporting, and alerting from unique global data and proprietary content sources 60% of the time when users save a piece of legislation or regulation, they were first alerted to it by FiscalNote’s proprietary recommendation engine3 Embedded Workflows Compare bill versions, perform real-time research, and log interactions with regulators

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23 Healthcare (~14%) Consumer & Retail (~2%) Energy (~3%) Finance (~5%) TMT (~5%) Education (~5%) Transport (~2%) Business Services (~5%) Government (~24%) Blue Chip Diverse Client Base 3 Relied upon and recognized across major public and private sector customers Note: Figures and logos exclude products acquired in 2021.

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24 Private Sector Staying Longer - Multi-Year Contracts % of ARR3 74 35 16 8 78 38 17 8 78 39 17 10 Public Sector Enterprise Mid-Market SMB Q2 '19 Q2 '20 Q2 '21 +2.7% +5.8% +4.5% CAGR4 46% 59% 65% 52% 67% 69% 37% 58% 59% Q2 '19 Q2 '20 Q2 '21 Enterprise Mid-market SMB Increasing Customer Spending - AAV1,2 ($000s) Upselling Potential Enabled by User and Product-Based Pricing “Land and Expand” Strategy Fueled by Cross & Upsell 4 UPSELL 3 Users 10 Users 20 Users+ MORE USERS MORE PRODUCTS USAGE & WORKFLOWS Client Onboarding DATA & CONTENT ~10K – 20k ACV ~20 - 50K ACV ~50K – 100K+ ACV Note: (1) Average Account Value (“AAV”) is the total annualized subscription revenue at a point in time divided by the number of active accounts with subscription products; (2) As at June 2021 and excludes 2021 acquisitions;(3) ARR (“Annual Recurring Revenue”) is defined as the value of contracted recurring revenue components from subscriptions normalized to a one-year period; (4) Based on specific figures, not rounded amounts. Customers spending more and staying longer for mission-critical insights +13.0%

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25 Multinational Biotech and Pharmaceutical Company One of the largest US Trade Associations Digital Publishing Company Global Law Firm Global Team Collaboration Global Legislation Coverage Advocacy Data Management Policy Tracking Customer Growth Stories 4 Key Product 36x 2x 22x 138x Key Product Key Product Key Product Note: Initial ARR (Annual Recurring Revenue, the value of the contracted recurring revenue components of term subscriptions normalized to a one-year period) is as of earliest contract available.

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26 Leveraging Core Technology for Organic Product Growth 4 New Adjacent Market Opportunities Geopolitical Risk Research Central Bank Policy Monitoring Issues Management ESG FDA Approval Tracking Advocacy Government Affairs Autonomous Driving Gig Economy US-China Relations Human Intelligence ML / AI Engine NLP Diversity & Inclusion Telehealth Cannabis industry Gig Economy Compliance Cryptocurrency Regulatory Monitoring Leverage strengths in scaling data and workflow to develop vertically integrated solutions for high growth regulated sectors of the future Regulated Sectors of the Future Cryptocurrency Compliance Online Sports Betting Cybersecurity Potential for long term investment in commercialization of AI technology and alternative data

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27 AI-enabled transcription around government, finance & alternative data Geopolitical analysis & advisory powered by a worldwide network of experts Al-driven, real-time ESG & Carbon Management SaaS platform ESG is Just the Tip of the Iceberg 4 Replicable strategies to leverage diverse customer base and technology to tap into other regulated sectors of the future I believe the SEC should step in when there’s this level of demand for information relevant to investors’ decisions. Gary Gensler, Chairman of the U.S. Securities and Exchange Commission Companies need to know the regulatory landscape… Regulations will always supersede the voluntary framework. Dr. Jean Rogers, Founder of the Sustainability Accounting Standards Board (SASB) Mapping ESG regulation… …against enterprise data to produce actionable insights Leveraging FiscalNote’s Portfolio

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28 Geographic expansion + broadening of global information set ~14% CAGR in ARR since acquisition Selected M&A Integrations Broadened critical capacity in advocacy technology ~23% CAGR in ARR since acquisition Reduced cost + incremental capability Millions of dollars of future outsourced vendor expenses expected to be saved through AI-powered transcription Core technology contributes to other R&D initiatives 13 Completed acquisitions since 2015 7 Deals in 2021 1,100+ Clients acquired through M&A LTM 3 New international operational footprints 2021 YTD (UK, AU, SG) Geographic expansion Broadened critical capability Turnaround from negative growth Securing long-term global contacts and enhancing cross-selling capabilities Key Statistics1 ~$26MM Incremental M&A run-rate revenue in 2021 Prolific and Disciplined M&A Machine 5 Note: (1) As of Aug, 2021.

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29 Transaction structure Alignment of interests Scale and platform benefits Culture Non-competitive situations (i.e. not auctions) Deeply embedded customers Large market share Limited strategic options High subscription revenue streams Ability to cross-sell / up-sell Sub-sectors with competitive fragmentation Note: (1) Based on management estimates and preliminary financials received. Playbook for acquisition and integration Track record of value creation through acquisition of datasets and cross / upselling key customer segments Dedicated team of M&A professionals Well-supported by CFO, GC and internal stakeholders Proven Strategies Key Winning Factors IDENTIFIED TARGETS >900 Potential revenue: >$1BN1 A SHORTLISTED >55 Potential revenue: >$375MM1 B DISCUSSIONS or LOI 17 Potential revenue: >$145MM1 C Capital has been the historical handbrake on M&A — transaction will further accelerate prolific pace of M&A Criteria New Capital to Accelerate Growth 5

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30 Acquired PF Revenue: ~$26MM1 2021 Closed Transactions Signed LOI Potential PF Revenue: ~$11MM1 Potential PF Revenue: ~$135MM1 Note: (1) Based on management estimates, preliminary due diligence and subject to change; potential PF revenue of sample discussions represents all discussion stage targets, not just the ones highlighted here. (2) Transaction has closed recently. Sample Discussions Strong Pipeline of Imminent Targets 5 Government Affairs Management Platform for Voters in the US South America-based Legislative / Regulatory Tools and Tracker Regulatory Intelligence Europe-based Political Data & Monitoring Provider of Key Government, Business, & Media Stakeholder Data EMEA Legislative & Regulatory Intelligence News / Analysis on US Government Operations Global Policy and Financial Markets Analysis Global Market & Sectoral Analysis Advisory Asia-based Software and Data Company for Finance and Corporations AI-based Unstructured Data Processing Company2 Constituent Communications Platform Geopolitical Intelligence and Advisory AI-Enabled Geopolitical Risk Technology Australian Legislative & Regulatory Tracking Cloud-based ESG Management Professional Community Engagement Civic Intelligence Monitoring International Targets

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31 No. of Deals YEARS SINCE FOUNDING MARKET CAP ($BN ) 30 20 40 50 60 10 10 20 LEGACY 30 100 13 160+ 240+ 160+ 250+ Cloud based AI/ML driven Modern core technology Rich data & content Founder led DISRUPTOR 50+ Note: Capital IQ, Factset. Market data as of 20 Aug 2021. Number of deals includes acquisitions made by predecessors and subsidiaries of companies. (1) Historical market cap as of the first trade date available on Factset; (2) Year since founding of Thomson Reuters based on the foundation year of The Thomson Corporation, which is the later predecessor of the two merged companies. Proven Corporate Strategy of Buy, Build, and Grow 5 Building a disruptive global data company in a new era of technology

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32 Operating Businesses at Scale Public Company Experience Executing M&A Deals Silicon Valley Experience Inside DC Experience Reed Fawell SVP Chief Revenue Officer Paul Donnell Chief Accounting Officer Dr. Vlad Eidelman Chief Scientist Head of AI Research Josh Resnik General Counsel, SVP Chief Content Officer Krystal Putman- Garcia Chief Marketing Officer GM of Advocacy Tim Hwang Chief Executive Officer Co-Founder Jennifer Yi Boyer SVP – Diversity, Equity and Inclusion Chief People Officer Jon Slabaugh Chief Financial Officer SVP, Corporate Development CNN Top 10 Startups World Economic Forum Technology Pioneer Forbes 30 Under 30 Goldman Sachs 100 Most Intriguing Entrepreneurs The Software Report Top 100 Companies Forbes Best Startup Employers Visionary, Founder-led Team with Strong Track Record 6

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33 Diverse Background & In-depth Expertise Adrian Fenty Special Advisor at Andreesen Horowitz; Former Mayor of Washington, D.C. Tom Monahan Former CEO of CEB Kevin Rudd Former Prime Minister of Australia Ron Gula Founder and former CEO of Tenable Daniel Nadler Founder and CEO of Kensho (acquired by S&P Global) Joe Saunders Former CEO of Visa Bruce Mehlman Former Assistant Secretary of Commerce, Lead Lobbyist for Cisco Systems, General Counsel to the NRCC Alec Ross Former Senior Advisor for Innovation to Secretary of State Clinton Katharine Weymouth Director at Graham Holdings, Former Publisher of Washington Post Carlos Gutierrez Former CEO of Kellogg Former United States Secretary of Commerce Naoko Okumoto Former VP at Yahoo! (founded and led Yahoo! Japan JV), Managing Director of Mistletoe (family office Taizo Son) John Suh Former CEO of LegalZoom Dr. Glenn Hubbard Dean of Columbia B. School Former Chair, White House Council of Economic Advisors Dr. Jean Rogers Founder and former CEO/Chair of SASB Heidi Dubois Executive Vice President & Head of ESG of Edelman Global Network of Advisors and Investors 6

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34 >$255MM2 Total funding raised Jerry Yang Mark Cuban Steve Case Note: (1) Visionnaire Ventures is the joint fund between Temasek Holding and Taizo Son; (2) Includes equity, convertible instruments and debt; (3) as of January 2021. 1 Backed by Influential List of Equity Investors and Funds 6 $1.0BN3 Valuation last round

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35 Financial Snapshot

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36 Supported by Loyal Customers Driving Predictable Revenue Note: (1) Run-rate revenue including acquisitions under LOI and in pipeline (at 30% probability weighting);(2) For the period indicated, reflects revenue less cost of revenue divided by revenue expressed as a percentage; (3) Calculated as growth against subscription products in Q1’ 21 not including companies acquired in 2021;(4) Customer satisfaction rate is captured through customer response to support tickets and the 95% figure is calculated as the rolling monthly average of the previous twelve months as of 6/30/21. Rapid, Sustainable Growth Improving Margins and Operating Leverage Supported by Loyal Customers Strong Momentum 55% FY21-23PF Revenue Growth Rate1 Revenue $173MM FY22PF1 High Margin 82% FY22PF Gross Margin2 Near-Term Profitability 2023 EBITDA Positive Sticky CustomerBase 101% Q2’ 21 Net Revenue Retention3 Satisfied Customers > 95% Customer Satisfaction Rate4

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37 $65 $108 $173 $32 $11 $20 $45 2020A revenue Revenue growth (Organic + Acquired) M&A targets under LOI 2021PF revenue Organic revenue growth Incremental revenue from M&A pipeline 2022PF revenue ~2025PF revenue target Self-reinforcing combination of organic initiatives and M&A fueling durable and visible growth pathway 37 Revenue ($MM) >$400+ 1 4 2 Management’s target: 15-20% ARR organic growth + >25% growth from M&A activity in pathway to $400MM+ 5 Rapid, Sustainable Growth… Note: (1) Includes pro forma acquisitions completed by Aug 2021; (2) Includes run-rate revenue of Forge which closed in Sep 2021 and two targets signed and pending close; (3) Reflects total organic revenue growth from 2021 including ~$10MM of revenue growth from the 2021 acquisitions (comprising ~$7MM from the acquisitions completed by Jul 2021 and ~$3MM from the acquisitions closed / pending close after Jul 2021); (4) Run-rate revenue estimate for all pipeline acquisitions at 30% probability weighting; (5) 2025E Revenue Target is based on management expectations regarding acquisition pipeline. See "Disclaimer--Use of Projections". +63% 3

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38 $65 $71 $128 $206 $309 $37 $45 $50 $55 $108 $173 $256 $365 2020A 2021PF 2022PF 2023PF 2024PF Organic Revenue Run-rate Revenue Acquired (Current Year) 92% Recurring revenue +63% 2021-24 CAGR 2 +50% Note: (1) 8 completed acquisitions in 2021 + 2 M&As signed and pending close; (2) Includes ~$26MM of run-rate revenue from targets acquired by August 2021 and ~$11MM of run-rate revenue from Forge which closed in Sep 2021 and two targets signed and pending close; (3) Depicts organic revenue from legacy platform and acquisitions completed in the previous year; (4) Represents run-rate revenue acquired during the year of acquisition. For 2021, this represents 7 M&A targets acquired by August 2021, Forge which closed in Sep 2021 and 2 other targets signed and pending close. Run-rate revenue figure depicted for 2021. For 2022 to 2024, incremental acquired pipeline is based on a robust pipeline identified by management, with a 30% probability weighting as a margin of safety. Figures during the year of acquisition are based on run-rate values and not recognized. … supported by organic growth and M&A Revenue by Type ($MM) 3 4 10 acquisitions1 targeted with total run-rate revenue of ~$37MM Identified acquisition targets with total run-rate revenue of ~$135MM Pace and scale of M&A continues to increase as company drives growth from acquired assets 2

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39 A Highly Efficient Business Model at Scale Gross Margin1 Sales & Marketing Research & Development Editorial General & Administrative EBITDA Margin 82% 31% 25% 20% 27% (21%) ~88% ~20% ~13% ~12% ~12% ~30% High incremental margins Seller productivity; using automation for sales operations and CRM Unified platform for quicker integration of new products/acquisitions Economies of scale in editorial and licensing Focus on operational excellence and M&A synergies FY21E Long-term Scale (Expected) Key Drivers + ~10-15% Organic Growth =Rule of 40% 51% contribution margin 68% contribution margin Note: (1) For the period indicated, reflects revenue less cost of revenue divided by revenue expressed as a percentage.

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40 Valuation Overview

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41 Sources & Uses Transaction Summary Illustrative Pro Forma Capital Structure Illustrative Pro Forma Valuation Illustrative Pro Forma Ownership at Close3 Sources $MM Cash in Trust1 175 Private Placement (PIPE) 100 SPAC Sponsor 44 Existing Shareholder Rollover 1,000 Total Sources 1,318 Uses $MM Existing Shareholder Rollover 1,000 Debt Paydown 127 SPAC Sponsor 44 Cash on Balance Sheet 118 Transaction Expenses 30 Total Uses 1,318 Pro Forma Valuation $MM, except per share data Share Price ($) 10.00 Shares Outstanding2 132 Pro Forma Market Capitalization 1,318 Pro Forma Net Debt (130) Pro Forma Enterprise Value 1,188 EV / FY22PF Sales4 6.87x EV / FY23PF Sales4 4.64x ($MM) Oct-21 Adjustments Pro Forma at Close Cash & Cash equivalents 32 118 151 Total Indebtedness5 147 (127) 21 Total Debt 147 21 Net Debt 115 (130) Note: (1) Cash in trust is 100% backstopped by the SPAC Sponsor and its affiliates; (2) Excludes seller earnout of 3% of shares outstanding at closing of transaction at each of $12.5 / $15 / $20 / $25; (3) Pro forma ownership excludes the impacts of public and private warrants held by the SPAC shareholders and the SPAC sponsor. Does not reflect percentages of voting rights, which will be impacted by dual class structure to be adopted whereby certain Existing FiscalNote Shareholders such as co-founders are expected to hold high vote Class B common stock as set forth in the definitive business combination agreement, while public shareholders are expected to hold Class A common stock which carries one vote per share; (4) Based on FY22PF and FY23PF revenue and pro forma enterprise value. (5) Excludes approximately $15mm of fees and repayment costs. 76% 13% 8% 3% Existing FN Shareholders Public SPAC Shareholders PIPE Investors SPAC Sponsor Valuation In-Line with Last Funding Round

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42 Attractive DeSPAC Valuation Relative to Peers Note: FactSet. Market data as of November 3, 2021. (1) FiscalNote multiple calculated off 2022PF EV / Sales. Median: 19.0x Mean: 18.0x 2022E EV / Sales Vertical Software Info Services Core Comps 1 EV ($BN) 1.2 1.8 3.2 5.3 48.9 46.7 15.3 11.6 9.6 7.0 3.7 2.4 55.2 28.1 23.6 30.8

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43 Attractive DeSPAC Valuation Relative to Peers (Cont’d) Note: FactSet. Market data as of November 3, 2021. (1) FiscalNote multiple calculated off 2023PF EV / Sales. 2023E EV / Sales Median: 15.3x Mean: 14.7x Vertical Software Info Services Core Comps EV ($BN) 1.2 1.8 3.2 5.3 48.9 46.7 15.3 11.6 9.6 7.0 3.7 2.4 55.2 28.1 23.6 30.8 1

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44 Operational Benchmarking Note: FactSet. Market data as of November 3, 2021. (1) Calculated as 2022E EV/Sales divided by 21-23E revenue CAGR, divided by 100; (2) FiscalNote multiple calculated off 2022PF EV / Sales. Growth Adjusted 2022E EV / Sales1 2021-23E Revenue CAGR Median: 22% Mean: 21% Median: 0.83 Mean: 0.93 2

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45 Operational Benchmarking (Cont’d) Note: FactSet. Capital IQ, Market data as of November 3, 2021. (1) FiscalNote margin refers to 2022PF gross margin, which reflects revenue less cost of revenue divided by revenue expressed as a percentage for the period indicated. 2022E Gross Margin Median: 70% Mean: 70% 1

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46 Operational Benchmarking (Cont’d) Note: FactSet. Capital IQ, Market data as of November 3, 2021. (1) FiscalNote margin refers to 2023PF gross margin, which reflects revenue less cost of revenue divided by revenue expressed as a percentage for the period indicated. 2023E Gross Margin Median: 71% Mean: 70% 1

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47 IPO Date IPO Mkt. Cap ($MM) IPO Size1 ($MM) Cornerstone2 ($MM) Investor2 Jun 30, 2021 1,569 314 60 Jun 30, 2021 5,507 616 240 Jul 21, 2021 1,820 240 50 LegalTech - Existing Institutional Buy-side and Sell-side Following Attractive Entry Multiple Provides Margin of Safety and Re-rating Potential Limited Investable Public Float $820MM public float Total $1.2BN Total $350MM Note: Company Fillings, FactSet, Dealogic. Market data as of November 3, 2021. (1) Post-greenshoe and excluding any secondary offerings; (2) including Concurrent Private Placement for LegalZoom’s IPO; (3) FiscalNote’s multiple is based on FY22PF and FY23PF revenue. Mean: 10.0x Mean: 13.4x 3 Mean: 10.6x 3 3

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48 Category creator that can turbo charge consolidation - no longer capital constrained Ready to scale with multiple growth vectors: SaaS flywheel, adjacent verticals, geographic expansion Precedent value creation in information services sector: base + bolt-ons Founder-led management - conservative by nature, with “beat and raise” mentality Credibility through high quality venture capital and strategic led funding rounds Public market institutional demand for LegalTech - visible listed peers with limited investable float Track record and familiarity from Maso’s prior investment experience in company Seller earnout at $12.5 / $15 / $20 / $25 and sponsor commitment provides alignment with shareholders Valuation margin of safety - execution leads to a potential equity re-rating Why Duddell Likes FiscalNote –“Elegance in its Simplicity” Great Company | Attractive Valuation | Right Structure Fundamental Structural & Technical 1 2 3 4 1 2 3 4 5

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49 Thank You

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50 Appendix

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51 AAV: Average Account Value is the total ARR at a point in time divided by the number of active accounts ACV: Annual Contract Value on any single account. Some large accounts have multiple contracts within that account, therefore the ACV is the annualized sum of those contracts AI: Artificial intelligence (AI) refers to the simulation of human intelligence in machines that are programmed to think like humans and mimic their actions ARR: Annual Recurring Revenue (ARR) is the value of the contracted recurring revenue components of term subscriptions normalized to a one-year period Booking: A booking refers to when a customer books the Company's products and services and commits to the orders CAC: CAC, or customer acquisition cost, measures the cost related to acquiring a new customer LTM: Referring to period consisting of the previous twelve (12) months LTV: LTV, or lifetime value, measures customer's revenue generated over their entire relationship with a company LTV/CAC: The LTV/CAC ratio compares the value of a customer over their lifetime, compared to the cost of acquiring them ML: Machine learning (ML) is a branch of artificial intelligence and computer science which focuses on the use of data and algorithms to imitate the way that humans learn, gradually improving its accuracy NRR: NRR (Net Revenue Retention) is defined as the percentage of subscription revenue retained from existing customers over a defined period of time, including downgrades and reductions, plus expansions PCAOB: The Public Company Accounting Oversight Board (PCAOB) is a nonprofit corporation created by the Sarbanes–Oxley Act of 2002 to oversee the audits of public companies and other issuers in order to protect the interests of investors Pre-money valuation: A pre-money valuation refers to the value of a company before it receives other investments such as external funding or financing Rule of 40: Rule of 40 is a common metric to measure the performance of SaaS companies. If Revenue Growth + EBITDA Margin > 40%, a SaaS companies is deemed competitive YTD: Year to date (YTD) refers to the period of time beginning the first day of the current calendar year or fiscal year up to the current date Glossary

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52 Non-GAAP Reconciliations Note: Figures in $MM. Numbers depicted do not include revenue/income from M&A targets under LOI or in the pipeline, they only include run-rate figures for acquisitions completed by August 2021. Actual Forecast Forecast Forecast Forecast 2020 2021 2022 2023 2024 Revenue $65.2 $97.3 $114.5 $137.7 $171.2 Gross Profit $52.5 $79.6 $96.5 $117.7 $149.2 Adjusted to exclude the following: Stock based compensation 0.0 ---- Dep & Amort 3.0 2.1 1.9 1.8 1.5 Non - GAAP Gross Profit $49.5 $77.5 $94.6 $115.9 $147.7 Operating Income ($26.7) ($38.9) ($24.7) ($4.4) $21.5 Adjusted to exclude the following (incl. the portion related to cost of revenue) Stock based compensation 1.0 ---- Dep & Amort 11.5 13.8 14.6 15.0 15.2 IPO / SPAC - 3.1 --- M&A - 0.5 0.5 0.5 0.5 Litigation - 1.2 1.2 1.2 1.2 Non GAAP Operating Income (Adjusted EBITDA) ($14.2) ($20.3) ($8.5) $12.3 $38.4 Adjusted EBITDA (%) (22%) (21%) (7%) 9% 22%

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53 Financial Model Summary Note: (1) Includes Forge which closed in Sep 2021 and two targets signed and pending close; (2) 30% probability weighting applied to pipeline acquisitions; (3) Denotes run-rate revenue which includes revenue acquired during the year of acquisition. (4) Inclusive of completed acquisitions, targets under LOI and in pipeline on a run-rate basis; (5) Only includes acquisitions completed till August 2021 (Oxford Analytica, Fireside, Timebase, Equilibrium, Predata, Board.org and Curate); does not include transactions closed thereafter or M&A targets under LOI / in pipeline. ($mm, except where noted) FY19A FY20A FY21E FY22E FY23E FY24E 2021-24 CAGR Revenue Organic Current Organic 66 65 71 81 93 112 Completed Deals in 2021 - - 26 33 44 59 Under LOI1 - - 11 14 17 22 Total $66 $65 $108 $128 $155 $193 21% % growth (1%) 66% 19% 21% 25% Future Acquisitions2 - - - 45 102 172 Total PF Revenue (inclusive of Acquisitions)3 $66 $65 $108 $173 $256 $365 50% % growth (1%) 66% 61% 48% 42% Cost of Sales4 $13 $13 $22 $31 $40 $53 34% Total PF Gross Profit (inclusive of Acquisitions)4 $53 $53 $86 $143 $216 $312 54% % margin 80% 81% 79% 82% 84% 85% Adjusted EBITDA (Organic only)5 ($13) ($14) ($20) ($9) $12 $38 % margin (19%) (22%) (21%) (7%) 9% 22%

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54 Risks Related to FiscalNote’s Business FiscalNote has recently experienced rapid growth that may not be indicative of future growth, which makes it difficult to forecast its revenue and evaluate its business and prospects. If FiscalNote fails to manage its growth effectively, its business, financial condition, results of operations and prospects could be materially and adversely affected. FiscalNote has a history of net losses, anticipates increasing operating expenses in the future, and may not be able to achieve and, if achieved, maintain profitability. FiscalNote generates a significant percentage of its revenues from recurring subscription-based arrangements, and if it is unable to maintain a high renewal rate, its business, financial condition, results of operations and prospects could be materially and adversely affected. If FiscalNote is unable to attract new customers, retain existing customers, expand its products and services offerings with existing customers, expand into new geographic markets or identify areas of higher growth, its revenue growth and profitability will be harmed. FiscalNote’s efforts to expand its service offerings and to develop and integrate its existing services in order to keep pace with policy, regulatory, political and technological developments may not succeed. A principal focus of FiscalNote’s business strategy is to grow and expand its business through acquisitions. FiscalNote may not be able to successfully identify attractive acquisition opportunities or make acquisitions on terms that are satisfactory to it from a commercial perspective. FiscalNote may not realize expected business or financial benefits from acquisitions or integrate acquired businesses in an efficient and effective manner, or such acquisitions could divert management’s attention, increase capital requirements or dilute stockholder value and materially and adversely affect FiscalNote’s business, financial condition, results of operations and prospects. FiscalNote recognizes revenues over the term of the agreements for its subscriptions and, as a result, there is often a lag in realizing the impact of current sales or cancellations in reported revenues by FiscalNote, and a significant downturn in FiscalNote’s business may not be reflected immediately in its operating results. FiscalNote’s sales cycles are variable, depend upon factors outside its control, and could cause it to expend significant time and resources prior to generating revenues. FiscalNote may experience fluctuations in its quarterly and annual operating results. If FiscalNote has overestimated the size of its total addressable market, FiscalNote’s future growth rate may be limited. FiscalNote relies on third parties, including public sources, for data, information and other products and services, and FiscalNote’s relationships with such third parties may not be successful or may change, which could adversely affect its results of operations. If FiscalNote is not able to obtain and maintain accurate, comprehensive, or reliable data, it could experience reduced demand for its products and services. FiscalNote’s CQ Roll Call business currently relies on sources of revenues that have been, and likely will continue to be, negatively affected by digital commerce and media. FiscalNote’s ability to introduce new features, integrations, capabilities, and enhancements is dependent on adequate research and development resources. If FiscalNote does not adequately fund its research and development efforts, or if its research and development investments do not translate into material enhancements to its products and services, FiscalNote may not be able to compete effectively, and its business, financial condition, results of operations and prospects may be adversely affected. FiscalNote’s ability to introduce new features, integrations, capabilities, and enhancements is dependent on adequate research and development resources. If FiscalNote does not adequately fund its research and development efforts, or if its research and development investments do not translate into material enhancements to its products and services, FiscalNote may not be able to compete effectively, and its business, financial condition, results of operations and prospects may be adversely affected. Increased accessibility to free or relatively inexpensive information sources that offer comparable value to customers may reduce demand for FiscalNote’s products and services. Risk Factors

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55 If FiscalNote fails to maintain and improve its methods and technologies, or anticipate new methods or technologies, for data collection, organization, and analysis, competing products and services could surpass those of FiscalNote in depth, breadth, or accuracy of its data or in other respects. Larger and more well-funded companies with access to significant resources, large amounts of data or data collection methods, and sophisticated technologies may shift their business model to become direct competitors to FiscalNote. If FiscalNote fails to protect and maintain its brands, its ability to attract and retain customers will be impaired, its reputation may be harmed, and its business, financial condition, results of operations and prospects may suffer. FiscalNote has a significant portion of its sales to U.S. and foreign government agencies and other highly regulated organizations, which are subject to a number of challenges and risks. FiscalNote assists customers in certain legislative and other governmental relations matters, which activities may be deemed to be lobbying efforts. FiscalNote’s international operations subject it to additional risks that can adversely affect its business, results of operations and financial condition. FiscalNote has significant operations and assets in the UK, Belgium, Australia, South Korea, India, Singapore, and Hong Kong and, as a result, will be subject to risks inherent in doing business in those jurisdictions, which may adversely affect its financial performance and operating results. FiscalNote’s company culture has contributed to its success and if FiscalNote cannot maintain and evolve its culture as it grows, including through acquisition, its business could be materially and adversely affected. FiscalNote relies on the performance of highly skilled personnel, including its management and other key employees, and the loss of one or more of such personnel, or of a significant number of team members, could harm its business. If FiscalNote does not effectively maintain and grow its research and development team with top talent, including employees who are trained in artificial intelligence, machine learning and advanced algorithms, FiscalNote may be unable to continue to improve its artificial intelligence capabilities, and its revenues and other results of operations could be adversely affected. Regulators in the U.S. and other jurisdictions where FiscalNote operates may limit FiscalNote’s ability to develop or implement its proprietary artificial intelligence algorithms and/or may eliminate or restrict the confidentiality of its proprietary technology, which could have a material adverse effect on FiscalNote’s financial condition and results of operations. Issues in the use of artificial intelligence (including machine learning) in FiscalNote’s platforms may result in reputational harm or liability. Failure to effectively develop and expand FiscalNote’s marketing and sales capabilities could harm its ability to increase its customer base, expand its engagements with existing customers, and achieve broader market acceptance of its products and services. Any failure to offer high-quality support and professional services for FiscalNote’s customers may harm its relationships with its customers and, consequently, FiscalNote’s business. FiscalNote’s business is subject to numerous legal and regulatory risks that could have an adverse impact on its business. FiscalNote has incurred a significant amount of debt, some of which is secured by substantially all of FiscalNote’s assets, and may in the future incur additional indebtedness. FiscalNote’s payment obligations under such indebtedness may limit the funds available to FiscalNote, and the terms of FiscalNote’s debt agreements may restrict its flexibility in operating its business. FiscalNote is currently and may in the future be involved in legal actions and claims arising in the ordinary course of business. Adverse litigation judgments or settlements resulting from legal proceedings in which FiscalNote may be involved could expose FiscalNote to monetary damages or limit the ability to operate its business. Risk Factors (Cont’d)

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56 FiscalNote’s projections and key performance metrics are subject to significant risks, assumptions, estimates and uncertainties. As a result, FiscalNote’s financial and operating results may differ materially from its expectations. FiscalNote’s use of any “open source” software under restrictive licenses could: (i) adversely affect FiscalNote’s ability to license and commercialize certain elements of its proprietary code base on the commercial terms of its choosing; (ii) result in a loss of FiscalNote’s trade secrets or other intellectual property rights with respect to certain portions of its proprietary code; and (iii) subject FiscalNote to litigation and other disputes. FiscalNote may not be able to adequately obtain, maintain, protect and enforce its proprietary and intellectual property rights in its data or technology. FiscalNote may in the future be sued by third parties for various claims including alleged infringement, misappropriation or other violation of proprietary intellectual property rights. FiscalNote is subject to sanctions, anti-corruption, anti-bribery, and similar laws, and non-compliance with such laws can subject FiscalNote to criminal penalties or significant fines and harm its business and reputation. The COVID-19 pandemic has materially impacted FiscalNote’s operations, is still ongoing, and it or other pandemics or public health threats could adversely affect FiscalNote’s business, financial condition, results of operations and prospects. FiscalNote may be exposed to fluctuations in foreign currency exchange rates that could adversely impact its results of operations. FiscalNote has entered into certain licensing agreements and other strategic relationships with third parties. These agreements and relationships may not continue and FiscalNote may not be successful in entering into other similar agreements and relationships. If FiscalNote fails to maintain its current licensing agreements or establish new relationships, it could result in loss of revenue and harm FiscalNote’s business and financial condition or inability for FiscalNote to use the intellectual property licensed to it by the applicable third party. FiscalNote has identified material weaknesses in its internal control over financial reporting, and its management has concluded that its disclosure controls and procedures are not effective. While it is working to remediate any material weakness in its internal controls over financial reporting, it cannot assure you that additional material weaknesses will not occur in the future. If its internal control over financial reporting or its disclosure controls and procedures are not effective, it may not be able to accurately report its financial results or prevent fraud, which may cause investors to lose confidence in its reported financial information and may lead to a decline in its stock price. As a private company, FiscalNote has not endeavored to establish and/or maintain public company-quality internal control over financial reporting. If it fails to establish and maintain proper and effective internal control over financial reporting as a public company, its ability to produce accurate and timely financial statements could be impaired, investors may lose confidence in its financial reporting and the trading price of its shares may decline. FiscalNote’s risk management processes and procedures may not be effective. FiscalNote operates in competitive markets and may be adversely affected by this competition. Changes in tax laws or regulations in the various tax jurisdictions to which FiscalNote is subject that are applied adversely to FiscalNote or its customers could increase the costs of FiscalNote’s products and services and harm its business. Risk Factors (Cont’d)

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57 Information Technology and Data Risks Cyber-attacks, security, privacy, or data breaches or other security incidents that affect FiscalNote’s networks or systems, or those of its service providers, involving sensitive, personal, classified or confidential information of FiscalNote or its customers could expose FiscalNote to liability under various laws and regulations across jurisdictions, decrease trust in FiscalNote and its products and services, increase the risk of litigation and governmental investigation, and harm to FiscalNote’s reputation, business, and financial condition. FiscalNote depends on third parties for data, information and other services, and FiscalNote’s ability to serve its customers could be adversely impacted if such third parties fail to fulfill their obligations, if FiscalNote is unable to effectively manage and minimize errors, failures, interruptions or delays caused by third parties or if FiscalNote’s arrangements with them are terminated and suitable replacements cannot be found on commercially reasonable terms or at all. Technical problems or disruptions affecting customers’ access to FiscalNote’s services, or the software, internal applications, databases, and network systems underlying its services, could damage FiscalNote’s reputation and brands and lead to reduced demand for its products and services, lower revenues, and increased costs. Risk Factors (Cont’d)

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58 Risks Related to the Ownership of New FiscalNote’s Class A Common Stock Following the consummation of the Business Combination, only its Co-Founders will be entitled to hold shares of New FiscalNote Class B common stock, which shares will have 10 votes per share. This will limit or preclude other stockholders’ ability to influence the outcome of matters submitted to stockholders for approval, including the election of directors, the approval of certain employee compensation plans, the adoption of amendments to its organizational documents and the approval of any merger, consolidation, sale of all or substantially all of its assets, or other major corporate transaction requiring stockholder approval. FiscalNote cannot predict the impact New FiscalNote’s dual class structure may have on the stock price of New FiscalNote’s Class A common stock. New FiscalNote will be a “controlled company” under NASDAQ listing standards, and as a result, its stockholders may not have certain corporate protections that are available to stockholders of companies that are not controlled companies. There may not be an active trading market for shares of New FiscalNote’s Class A common stock, which may cause shares of New FiscalNote’s Class A common stock to trade at a discount from their initial trading price and make it difficult to sell the shares of Class A common stock you purchase. Sales of a substantial number of New FiscalNote’s Class A common stock in the public market by its existing shareholders could cause New FiscalNote’s share price to decline. FiscalNote’s management team has limited experience managing a public company. FiscalNote will incur increased costs as a result of operating as a public company, and its management will be required to devote substantial time to new compliance initiatives and corporate governance practices. If securities or industry analysts do not publish research or reports about its business, or if they downgrade their recommendations regarding New FiscalNote’s Class A common stock, New FiscalNote’s stock price and trading volume could decline. New FiscalNote may issue preferred stock, the terms of which could adversely affect the voting power or value of New FiscalNote’s Class A common stock. Anti-takeover provisions in New FiscalNote’s organizational documents and Delaware law might discourage or delay acquisition attempts for New FiscalNote that you might consider favorable. New FiscalNote’s certificate of incorporation will designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be initiated by its stockholders, which could limit New FiscalNote’s stockholders’ ability to obtain a favorable judicial forum for disputes with New FiscalNote or its directors, officers, employees, or other stockholders. Risk Factors (Cont’d)