Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

VPC Impact Acquisition Holdings,

Pylon Merger Company LLC

and

Bakkt Holdings, LLC

Dated January 11, 2021

 

Table of Contents

 

				Page
ARTICLE I
CLOSING TRANSACTIONS; THE MERGER
Section 1.1		Closing Transactions			3
Section 1.2		Merger			3
Section 1.3		Location and Date			4
Section 1.4		Effective Time			4
Section 1.5		Effects of Merger			4
Section 1.6		Organizational Documents of Surviving Company			4
Section 1.7		Directors, Managers and Officers of Surviving Company			4
Section 1.8		Certain Closing Deliveries			5
ARTICLE II
EFFECT OF THE DOMESTICATION AND MERGER
Section 2.1		Actions to Effect Domestication			6
Section 2.2		Effect of Domestication			7
Section 2.3		Merger and Closing Payments; Effect on Equity Interests			8
Section 2.4		Treatment of Bakkt Incentive Plan Awards			9
Section 2.5		Treatment of Bakkt Opco Warrants			10
Section 2.6		Exchange			11
Section 2.7		Closing Statement; Determination of Available Cash			11
Section 2.8		Withholding Rights			12
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BAKKT OPCO
Section 3.1		Due Organization			12
Section 3.2		Authorization; No Conflict			13
Section 3.3		Capitalization			14
Section 3.4		Financial Statements			15
Section 3.5		Absence of Changes			16
Section 3.6		Real Property			16
Section 3.7		Assets			17
Section 3.8		Taxes			17
Section 3.9		Employee Benefit Plans			19
Section 3.10		Labor Matters			21
Section 3.11		Compliance; Permits			23
Section 3.12		Legal Proceedings			23
Section 3.13		Contracts and Commitments			23

 

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Section 3.14		Intellectual Property			26
Section 3.15		Data Privacy and IT Systems			27
Section 3.16		Insurance			28
Section 3.17		Environmental Matters			29
Section 3.18		Brokers and Agents			29
Section 3.19		Transactions with Related Parties			29
Section 3.20		Regulatory Matters			29
Section 3.21		Board Recommendation			31
Section 3.22		No Other VIH or Merger Sub Representations or Warranties			31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VIH AND MERGER SUB
Section 4.1		Due Organization			32
Section 4.2		Authorization; No Conflict			32
Section 4.3		Capitalization			33
Section 4.4		Merger Sub			34
Section 4.5		Special Purpose Acquisition Company; Absence of Changes			34
Section 4.6		Taxes			34
Section 4.7		Brokers and Agents			35
Section 4.8		Financing			36
Section 4.9		Legal Proceedings			36
Section 4.10		Compliance; Permits			36
Section 4.11		SEC Filings and VIH Financials			36
Section 4.12		National Stock Exchange			38
Section 4.13		Board Recommendation			38
Section 4.14		Trust Account			38
Section 4.15		Insurance			38
Section 4.16		Intellectual Property			38
Section 4.17		Agreements, Contracts and Commitments			39
Section 4.18		Title to Property			39
Section 4.19		Employee Matters			39
Section 4.20		Regulatory Matters			40
Section 4.21		Investment Company Act			40
Section 4.22		PIPE Financing			40
Section 4.23		Due Diligence Investigation			41
Section 4.24		No Other Bakkt Opco Representations or Warranties			42
ARTICLE V
PRE-CLOSING COVENANTS
Section 5.1		Conduct of Business of Bakkt Opco			42
Section 5.2		Conduct of Business of VIH			45
Section 5.3		Access to Information; Confidential Information.			47
Section 5.4		Notification of Certain Matters			48

 

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Section 5.5		Cause Conditions to be Satisfied			49
Section 5.6		PIPE Financing			49
Section 5.7		Governmental Consents and Filing of Notices			49
Section 5.8		Registration Statement; VIH Shareholder Meeting; Information Statement			50
Section 5.9		Disclosure Information			53
Section 5.10		Securities Listing			54
Section 5.11		No Solicitation			54
Section 5.12		Post-Closing Board of Directors and Executive Officers			56
Section 5.13		Trust Account Disbursement			57
Section 5.14		Section 16			57
Section 5.15		Third-Party Consents			57
Section 5.16		Unpaid Expenses			57
Section 5.17		No Trading			57
Section 5.18		Advice of Changes			57
Section 5.19		Cooperation Agreement			58
ARTICLE VI
OTHER COVENANTS
Section 6.1		Tax Matters			58
Section 6.2		Further Assurances			59
Section 6.3		Indemnification, Exculpation and Insurance			60
Section 6.4		Equity Incentive Plan			61
Section 6.5		Shareholder Litigation			61
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1		Conditions Precedent to Obligations of VIH, Merger Sub and Bakkt Opco			61
Section 7.2		Conditions Precedent to Obligations of VIH and Merger Sub			62
Section 7.3		Conditions Precedent to Obligations of Bakkt Opco			63
Section 7.4		Frustration of Closing Conditions			64
ARTICLE VIII
TERMINATION
Section 8.1		Termination			64
Section 8.2		Effect of Termination			66
ARTICLE IX
NO SURVIVAL; WAIVERS; GUARANTY
Section 9.1		No Survival; Waivers			66
Section 9.2		Trust Account Waiver			68

 

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ARTICLE X
DEFINITIONS
Section 10.1		Specific Definitions			70
Section 10.2		Accounting Terms			84
Section 10.3		Usage			84
Section 10.4		Index of Defined Terms			85
ARTICLE XI
GENERAL
Section 11.1		Notices			87
Section 11.2		Entire Agreement			89
Section 11.3		Successors and Assigns			89
Section 11.4		Counterparts			89
Section 11.5		Expenses and Fees			89
Section 11.6		Governing Law			89
Section 11.7		Submission to Jurisdiction; WAIVER OF JURY TRIAL			89
Section 11.8		Specific Performance			90
Section 11.9		Severability			90
Section 11.10		Amendment; Waiver			90
Section 11.11		Absence of Third Party Beneficiary Rights			90
Section 11.12		Mutual Drafting			91
Section 11.13		Further Representations			91
Section 11.14		Waiver of Conflicts			91
Section 11.15		Currency			92
Section 11.16		No Recourse			92
Section 11.17		Made Available			94

 

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EXHIBITS:

 

Exhibit A		Form of Surviving Company LLC Agreement
Exhibit B		Form of Exchange Agreement
Exhibit C		Form of Tax Receivable Agreement
Exhibit D		Form of Registration Rights Agreement
Exhibit E		Form of Voting Agreement
Exhibit F		Form of Stockholders Agreement
Exhibit G		Form of Bakkt Pubco Charter
Exhibit H		Form of Bakkt Pubco Bylaws
Exhibit I		Form of Equity Incentive Plan
Exhibit J		Form of Support Agreement
Exhibit K		Form of Certificate of Merger

 

 

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of January 11, 2021, by and among VPC Impact Acquisition Holdings, a Cayman Islands exempted company (“VIH”), Pylon Merger Company LLC, a Delaware limited liability company and wholly-owned subsidiary of VIH (“Merger Sub”), and Bakkt Holdings, LLC, a Delaware limited liability company (“Bakkt Opco”). VIH, Merger Sub and Bakkt Opco may be referred to herein, collectively, as the “Parties” and, individually, as a “Party”.

RECITALS

WHEREAS, VIH is a blank check company formed in the Cayman Islands for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;

WHEREAS, upon the terms and subject to the conditions hereof, (a) immediately prior to the Effective Time, VIH will effect the transfer by way of continuation of VIH from the Cayman Islands to the State of Delaware VIH in accordance with the applicable provisions of the Companies Act (2020 Revision) of the Cayman Islands (the “Companies Act”) and a continuation of VIH by way of domestication under Section 388 of the General Corporation Law of the State of Delaware (as amended, the “DGCL”) and be renamed “Bakkt Holdings, Inc.” (such renaming, the “Name Change”) (with the resulting corporation being referred to herein as “Bakkt Pubco”) (such deregistration and domestication, including all matters necessary or ancillary in order to effect such domestication, including the filing of the certificate of corporate domestication and the Bakkt Pubco Charter, the “Domestication”) and (b) at the Effective Time, Merger Sub will merge with and into Bakkt Opco (the “Merger”) with Bakkt Opco being the surviving limited liability company (with the surviving company being referred to herein as “Surviving Company”);

WHEREAS, following the Domestication, the holders of VIH Warrants shall, pursuant to the terms of such VIH Warrants, have the right to purchase and receive, upon the basis of, and upon terms and conditions specified in, such VIH Warrants and in lieu of the VIH Class A Shares immediately theretofore purchasable and receivable upon the exercise of rights represented thereby, the number of Bakkt Pubco Class A Shares receivable in connection with the Domestication that the holder of such VIH Warrants would have received if such holder had exercised its VIH Warrant(s) immediately prior to the Domestication (the VIH Warrants, so converted, are referred to as the “Bakkt Pubco Warrants”);

WHEREAS, the board of directors of VIH (“VIH Board”) has unanimously approved this Agreement, the Transaction Documents to which VIH is or will be a party, the consummation of the transactions contemplated by this Agreement and the Transaction Documents to which VIH is or will be a party, including the Domestication, the Merger, the issuance of the Bakkt Pubco Class A Shares and the Bakkt Pubco Class V Shares in connection with the Merger, and the PIPE Financing, and the adoption and approval of the Equity Incentive Plan (all such transactions, as well as the other transactions contemplated by this Agreement and the other Transaction Documents, collectively, the “Transactions”), in accordance with the Companies Act, the DGCL and the Organizational Documents of VIH;

WHEREAS, the VIH Board has unanimously (a) determined that the Transactions are advisable and in the best interests of VIH, (b) resolved to submit this Agreement to VIH Shareholders for their approval and (c) resolved to recommend adoption and approval of this Agreement and the Domestication, the Merger, the issuance of the Bakkt Pubco Class A Shares and the Bakkt Pubco Class V Shares, and the Equity Incentive Plan by VIH Shareholders;

WHEREAS, contemporaneously with the execution and delivery of this Agreement, VIH, in its capacity as the sole member of Merger Sub, has approved this Agreement and approved the consummation of the Transactions to which Merger Sub is or will be a party, including the Merger, in accordance with the Delaware Limited Liability Company Act (as amended, the “DLLCA”) and the Organizational Documents of Merger Sub pursuant to which Merger Sub obtained the Merger Sub Equity Holder’s Approval;

WHEREAS, the Board of Managers of Bakkt Opco has unanimously (a) determined that this Agreement and the Transactions, including the Merger are advisable and in the best interests of the Bakkt Equity Holders, (b) approved this Agreement and approved the consummation of the Transactions to which Bakkt Opco is or will be a party, and the consummation of the transactions contemplated by this Agreement and the Transaction Documents, including the Merger, (c) resolved to submit this Agreement, the Transaction Documents, the Merger and the other Transactions to the Bakkt Equity Holders for their adoption and approval and (d) resolved to recommend the adoption and approval of this Agreement, the Transaction Documents, the Merger and the other Transactions by the Bakkt Equity Holders;

WHEREAS, as a material inducement to VIH’s and Merger Sub’s willingness to enter into this Agreement, (a) promptly (but in any event within twenty-four (24) hours) after the execution and delivery of this Agreement, the Majority Bakkt Equity Holder is entering into a Support Agreement (collectively, the “Initial Bakkt Equity Holder Support Agreement”) and (b) promptly (but in any event within seven (7) days) after the execution and delivery of this Agreement, the Bakkt Equity Holders holding, together with persons delivering the Initial Bakkt Equity Holders Support Agreement, sufficient Bakkt Interests to obtain the Bakkt Equity Holders Approval (the Bakkt Equity Holders holding sufficient Bakkt Interests to obtain the Bakkt Equity Holders Approval, collectively the “Requisite Bakkt Equity Holders”), will enter into a Joinder Agreement (the “Joinder”) agreeing to become a party to such Initial Bakkt Equity Holder Support Agreement in the form attached to such Initial Bakkt Equity Holder Support Agreement (the Joinder, together with the Initial Bakkt Equity Holder Support Agreement, the “Support Agreements”), in each case in the form attached hereto as Exhibit J;

WHEREAS, contemporaneously with the execution and delivery of this Agreement, VIH Sponsor has entered into a letter agreement with VIH and Bakkt Opco (the “VIH Sponsor Letter”) pursuant to which, subject to the terms and conditions set forth therein, at and conditioned upon the Closing, (a) VIH Sponsor has agreed to waive the anti-dilution rights set forth in Article 17.3 of VIH’s Amended and Restated Memorandum and Articles of Association (the “VIH Memorandum and Articles”) with respect to the VIH Class B Shares owned by VIH Sponsor that may be triggered from the PIPE Financing, the Merger and/or the other transactions contemplated hereunder, (b) VIH Sponsor has agreed to the provisions set forth in Section 5.11, and (c) VIH Sponsor has agreed to vote all VIH Class B Shares held by it in favor of the adoption and approval of this Agreement and the other Voting Matters;

 

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WHEREAS, concurrently with the execution and delivery of this Agreement, VIH has entered into Subscription Agreements (the “PIPE Subscription Agreements”) with certain investors (“PIPE Investors”) pursuant to which such investors have agreed, subject to the terms and conditions set forth therein, to subscribe for and purchase, at the Closing, up to 32,500,000 Bakkt Pubco Class A Shares at $10.00 per share in cash, for aggregate gross proceeds to VIH of up to $325,000,000 (the “PIPE Financing”);

WHEREAS, VIH and VIH Sponsor entered into that certain Registration Rights Agreement, dated as of September 22, 2020 (the “Original RRA”);

WHEREAS, Bakkt Pubco, certain of the Bakkt Equity Holders, VIH Sponsor and certain other parties thereto will, concurrently with the Closing, enter into a registration rights, substantially in the form attached hereto as Exhibit D (the “Registration Rights Agreement”), and in connection with the execution of the Registration Rights Agreement, the parties to the Original RRA desire to terminate the Original RRA and replace it with the Registration Rights Agreement; and

WHEREAS, as a condition to the consummation of the Transactions and in accordance with the terms hereof and Article 51 of the VIH Memorandum and Articles, VIH shall provide an opportunity to its shareholders to have their shares of VIH Class A Shares redeemed for the consideration, and on the terms and subject to the conditions and limitations, set forth in this Agreement and the VIH Memorandum and Articles.

NOW, THEREFORE, in consideration of the premises and of the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

CLOSING TRANSACTIONS; THE MERGER

Section 1.1 Closing Transactions. At the Closing, the parties shall cause the consummation of the following transactions in the following order, in each case, conditional upon each transaction having been consummated, upon the terms and subject to the conditions of this Agreement: (i) VIH Sponsor shall waive the anti-dilution rights set forth in Article 17.3 of the VIH Memorandum and Articles with respect to the VIH Class B Shares that may result from the PIPE Financing, the Merger and/or the other transactions contemplated hereunder, in each case, pursuant to and in accordance with the terms of the VIH Sponsor Letter; (ii) VIH shall consummate the Domestication; (iii) the PIPE Investors and VIH shall consummate the PIPE Financing; and (iv) the Certificate of Merger shall be executed, delivered, and filed in accordance with Section 1.4 hereof.

Section 1.2 Merger. Upon the terms and subject to the conditions hereof, at the Effective Time, Merger Sub shall be merged with and into Bakkt Opco in accordance with Section 18-209 of the DLLCA, whereupon the separate limited liability company existence of Merger Sub shall cease, and Bakkt Opco shall continue as the surviving limited liability company in the Merger. Any reference in this Agreement to Bakkt Opco for periods from and after the Effective Time will be deemed to include Surviving Company.

 

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Section 1.3 Location and Date. The consummation of the transactions contemplated by this Agreement, including the Transactions (the “Closing”), shall take place (a) electronically by remote mutual exchange of signatures and documents commencing as promptly as reasonably practicable (and in any event no later than 8:00 a.m., Eastern Time, on the fifth (5^th) Business Day) following the date on which all conditions to the Closing set forth in Article VII shall have been satisfied or waived to the extent such conditions can be waived in accordance with applicable Law (other than those that by their terms are not contemplated to be satisfied until the time of the Closing, but subject to the fulfillment or waiver of such conditions at the time of the Closing) or (b) such other place, date or time as VIH and Bakkt Opco may mutually agree in writing. The date on which the Closing actually occurs is referred to herein as the “Closing Date”.

Section 1.4 Effective Time. In connection with the Closing, on the Closing Date, VIH and Bakkt Opco shall cause a certificate of merger, in the form attached hereto as Exhibit K (the “Certificate of Merger”), to be executed, acknowledged and filed with the Office of the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DLLCA. The Merger shall become effective at such time as the Certificate of Merger is duly filed with and accepted by the Office of the Secretary of State of the State of Delaware, unless VIH and Bakkt Opco shall agree and specify a subsequent date or time (the time at which the Merger becomes effective, the “Effective Time”).

Section 1.5 Effects of Merger. The Merger will have the effects provided in this Agreement and the applicable provisions of the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub and Bakkt Opco shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Surviving Company, which shall include the assumption by the Surviving Company of any and all agreements, covenants, duties and obligations of Merger Sub and the Surviving Company set forth in this Agreement to be performed after the Effective Time.

Section 1.6 Organizational Documents of Surviving Company. At the Effective Time, the certificate of formation of Bakkt Opco as of the date hereof shall become the certificate of formation of Surviving Company and the limited liability company agreement of Bakkt Opco shall be amended and restated in the form attached hereto as Exhibit A (the “Surviving Company LLC Agreement”), which shall become the limited liability company agreement of the Surviving Company, in each case until thereafter amended in accordance with the DLLCA and as provided in such certificate of formation or limited liability company agreement, as applicable.

Section 1.7 Directors, Managers and Officers of Surviving Company. Except as provided in Section 5.12(b), the officers of Bakkt Opco immediately prior to the Closing shall, from and after the Effective Time, become officers of Surviving Company until their successors shall have been duly elected, appointed or qualified or until their earlier death, resignation or removal in accordance with the Organizational Documents of Surviving Company and applicable

 

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Law. From and after the Effective Time, the sole manager of the Surviving Company shall be Bakkt Pubco, which shall be the sole managing member of Surviving Company (and all members of the Board of Managers of Bakkt Opco immediately prior to the Effective Time shall resign or be removed as of the Effective Time), until the Organizational Documents of Surviving Company are thereafter amended in accordance with the DLLCA and as provided in such Organizational Documents.

Section 1.8 Certain Closing Deliveries.

(a) At the Closing, on the terms and conditions set forth in this Agreement, Bakkt Pubco shall deliver to Bakkt Opco:

(i) a copy of the Surviving Company LLC Agreement, duly executed by Bakkt Pubco;

(ii) a copy of the Exchange Agreement in the form attached hereto as Exhibit B (the “Exchange Agreement”), duly executed by Bakkt Pubco;

(iii) a copy of the Tax Receivable Agreement in the form attached hereto as Exhibit C (the “Tax Receivable Agreement”), duly executed by Bakkt Pubco;

(iv) a copy of the Registration Rights Agreement, duly executed by Bakkt Pubco;

(v) a copy of the Voting Agreement in the form of Exhibit E (the “Voting Agreement”), duly executed by Bakkt Pubco;

(vi) a copy of the Stockholders Agreement in the form of Exhibit F (the “Stockholders Agreement”), duly executed by Bakkt Pubco and VIH Sponsor; and

(vii) a certificate, dated as of the Closing Date and duly executed by an authorized officer of Bakkt Pubco, certifying that the conditions set forth in each of Section 7.3(a), Section 7.3(b) and Section 7.3(c) have been satisfied.

(b) At the Closing, on the terms and conditions set forth in this Agreement, Bakkt Opco shall deliver to Bakkt Pubco:

(i) a copy of the Surviving Company LLC Agreement, duly executed by the Requisite Bakkt Equity Holders (which shall include, without limitation, the holders of a majority in interest of the Surviving Company Common Units (other than Bakkt Pubco));

(ii) a copy of the Exchange Agreement, duly executed by the Requisite Bakkt Equity Holders (which shall include, without limitation, the holders of a majority in interest of the Surviving Company Common Units (other than Bakkt Pubco));

 

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(iii) a copy of the Tax Receivable Agreement, duly executed by the Requisite Bakkt Equity Holders (which shall include, without limitation, the holders of a majority in interest of the Surviving Company Common Units (other than Bakkt Pubco));

(iv) manager resignation letters, in the form reasonably agreed to by VIH and Bakkt Opco, duly executed by each manager on the Board of Managers of Bakkt Opco;

(v) a copy of the Voting Agreement, duly executed by the Majority Bakkt Equity Holder;

(vi) a certificate, dated as of the Closing Date and duly executed by an authorized officer of Bakkt Opco, certifying that the conditions set forth in each of Section 7.2(a), Section 7.2(b), and Section 7.2(c) have been satisfied;

(vii) a copy of the Stockholders Agreement, duly executed by the Requisite Bakkt Equity Holders (which shall include, without limitation, the holders of a majority in interest of the Surviving Company Common Units (other than Bakkt Pubco));

(viii) a certificate from the Secretary of State of the State of Delaware, dated within ten (10) Business Days prior to the Closing Date, certifying that Bakkt Opco is in good standing;

(ix) the PCAOB Financial Statements; and

(x) a copy of the Registration Rights Agreement, duly executed by the Requisite Bakkt Equity Holders (which shall include, without limitation, the holders of a majority in interest of the Surviving Company Common Units (other than Bakkt Pubco)).

ARTICLE II

EFFECT OF THE DOMESTICATION AND MERGER

Section 2.1 Actions to Effect Domestication. Immediately prior to the Effective Time, subject to obtaining the VIH Shareholders’ Approval:

(a) VIH shall attend to and effect all filings, including with the Registrar of Companies in the Cayman Islands, as required under the Companies Act to effect the Domestication;

(b) VIH shall duly execute and file a certificate of corporate domestication with the Office of the Secretary of State of the State of Delaware;

(c) VIH shall duly execute and file a certificate of incorporation with the Secretary of State of the State of Delaware in the form of the certificate of incorporation attached hereto as Exhibit G (the “Bakkt Pubco Charter”), effective as of immediately prior to the Effective Time, which shall be the certificate of incorporation of Bakkt Pubco until thereafter amended in accordance with the DGCL and as provided in such certificate of incorporation;

 

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(d) Bakkt Pubco shall adopt bylaws in the form of the bylaws attached hereto as Exhibit H (the “Bakkt Pubco Bylaws”), effective as of immediately prior to the Effective Time, which shall be the bylaws of Bakkt Pubco until thereafter amended in accordance with the DGCL, the Bakkt Pubco Charter and as provided in such Bakkt Pubco Bylaws; and

(e) VIH shall take any other action reasonably necessary to consummate the Domestication in accordance with the applicable provisions of the DGCL and the Companies Act, in each case such that the Domestication shall become effective prior to the Effective Time. Upon the reasonable request of VIH, Bakkt Opco shall execute, acknowledge and deliver all such instruments and documents and shall take all such other actions reasonably required to consummate and make effective the Domestication, including, without limitation, in respect of the Name Change, executing a consent for the use of a similar corporate name or similar document.

Section 2.2 Effect of Domestication. Upon the Domestication, subject to consummation of the Merger and effective as of immediately prior to the Effective Time, by virtue of the Domestication and without any action on the part of VIH, any VIH Shareholder or any other Person:

(a) Each VIH Public Unit issued and outstanding immediately prior to the Domestication shall be separated into its component share of VIH Class A Share and VIH Warrant;

(b) (i) Each VIH Class A Share issued and outstanding immediately prior to the Domestication shall remain outstanding and shall be automatically converted into one (1) Bakkt Pubco Class A Share and (ii) the transfer books of VIH and Bakkt Pubco shall record such conversion; provided, however, that each VIH Class A Share owned by Public Stockholders who have validly elected to redeem their shares in connection with the Redemption shall entitle the holder thereof to receive only cash in an amount equal to the Redemption Price as provided for in the Trust Agreement and the VIH Memorandum and Articles.

(c) (i) Each VIH Class B Share issued and outstanding immediately prior to the Domestication shall be automatically converted into one (1) Bakkt Pubco Class A Share, (ii) the transfer books of VIH and Bakkt Pubco shall record such conversion and (iii) all rights in respect of all VIH Class B Shares shall cease to exist, other than the right to receive the Bakkt Pubco Class A Shares in accordance with this Section 2.2(c).

(d) Each of the VIH Warrants shall be automatically converted into one (1) Bakkt Pubco Warrant.

(e) Any reference in this Agreement to VIH Class A Shares and VIH Class B Shares, collectively, for periods from and after the Domestication will be deemed to include the Bakkt Pubco Class A Shares. Notwithstanding anything to the contrary contained in this Agreement, the parties acknowledge and agree that the Domestication will occur immediately prior to the Merger for Tax and all other purposes. For the avoidance of doubt, any reference in this Agreement to Bakkt Pubco for periods prior to the Domestication shall mean VIH and any reference in this Agreement to VIH for periods from and after the Domestication shall mean Bakkt Pubco.

 

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Section 2.3 Merger and Closing Payments; Effect on Equity Interests.

(a) At the Closing, Bakkt Pubco shall:

(i) pay, as applicable, directly to each Person to whom Bakkt Transaction Expenses or VIH Transaction Expenses are owed, all sums necessary and sufficient to fully pay, discharge and satisfy all such Bakkt Transaction Expenses or VIH Transaction Expenses, in each case as reflected on the Closing Statement;

(ii) pay, by wire transfer of immediately available funds, to Bakkt Opco (to such account or accounts of Bakkt Opco as Bakkt Opco shall designate in writing to VIH not less than two (2) Business Days prior to the Closing Date) the amount of Bakkt Transaction Expenses paid prior to Closing, as reflected on the Closing Statement; and

(iii) pay, by wire transfer of immediately available funds, to Bakkt Opco (to such account or accounts of Bakkt Opco as Bakkt Opco shall designate in writing to VIH not less than two (2) Business Days prior to the Closing Date), an amount equal to the Available Cash.

(b) At the Effective Time, by virtue of the Merger and without any action on the part of Bakkt Pubco, Merger Sub, Bakkt Opco or any of the Bakkt Equity Holders:

(i) all issued and outstanding Bakkt Interests held by Bakkt Opco or any of its Subsidiaries (the “Excluded Bakkt Interests”) shall be automatically cancelled and no consideration shall be issued or paid in respect thereof;

(ii) the Bakkt Interests held by each Bakkt Equity Holder (other than the Excluded Bakkt Interests) shall be converted into the right to receive (the “Merger Consideration”) from Surviving Company and from Bakkt Pubco the number of Surviving Company Common Units and the number of validly issued, fully paid and nonassessable Bakkt Pubco Class V Shares, respectively, that such Bakkt Equity Holder would be entitled to receive if the Aggregate Merger Consideration were distributed by Bakkt Opco in a Deemed Liquidation consistent with the illustrative calculation (which assumes that the Effective Time occurred on the date hereof) set forth in Section 2.3(b)(ii) of the Bakkt Disclosure Letter (the “Illustrative Merger Consideration Spreadsheet”), which Illustrative Merger Consideration Spreadsheet shall be updated by Bakkt Opco as of the Effective Time (the “Final Merger Consideration Spreadsheet”) to reflect any transfers of interests prior to the Effective Time in accordance with the Bakkt Opco LLC Agreement or other applicable events;

(iii) each holder of Surviving Company Common Units acquired pursuant to the foregoing clause (ii) shall automatically be deemed to continue as a member of Surviving Company with respect to such Surviving Company Common Units; and

(iv) the limited liability company interests of Merger Sub shall be converted into a number of Surviving Company Common Units equal to the number of Bakkt Pubco Class A Shares outstanding as of immediately prior to the Effective Time (after giving effect to the Domestication, the consummation of the PIPE Financing and the Redemption), and Bakkt Pubco, as the sole holder thereof, shall automatically be admitted as a member, and the managing member, of Surviving Company in accordance with the terms of the Surviving Company LLC Agreement.

 

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(c) As of the Effective Time, the Bakkt Interests (other than the Excluded Bakkt Interests) shall no longer be outstanding and shall automatically be cancelled and cease to exist, and each holder of such Bakkt Interests (other than the Excluded Bakkt Interests) shall cease to have any rights with respect thereto, except for the right of such holder to receive a portion of the Merger Consideration in accordance with the terms hereof.

(d) For the avoidance of doubt, the aggregate consideration to be received in respect of the Merger by (or otherwise allocated to, in the case of Section 2.5) all of the Bakkt Equity Holders pursuant to this Section 2.3, pursuant to Section 2.4, and any holders of Bakkt Opco Warrants pursuant to Section 2.5 shall be equal to (and in no event shall exceed) the Aggregate Merger Consideration.

Section 2.4 Treatment of Bakkt Incentive Plan Awards.

(a) At the Effective Time, in accordance with Section 2.3(b)(ii), the Bakkt Opco Incentive Units held by Bakkt Management shall be converted into the right to receive the Merger Consideration as set forth on the Final Merger Consideration Spreadsheet; provided, without limiting the generality of the foregoing, that the Merger Consideration in respect of such Bakkt Opco Incentive Units (and the corresponding interests in Bakkt Management held by Participants (as defined in the Bakkt Equity Incentive Plan) under the Bakkt Equity Incentive Plan) shall vest in three equal installments, with one third vesting at the Effective Time, one third vesting on the first anniversary of the Effective Time, and one third vesting on the second anniversary of the Effective Time, as if the Transactions constituted an IPO under the Bakkt Equity Incentive Plan; and, provided, further, that if a Participant is terminated without Cause (as defined in the Bakkt Equity Incentive Plan) within two years following the Effective Time, the Merger Consideration in respect of all then unvested Bakkt Opco Incentive Units and corresponding interests in Bakkt Management relating to such Participant shall immediately vest in full.

(b) At the Effective Time, each Participation Unit shall be treated as if the Transactions constituted an IPO under the Bakkt Equity Incentive Plan, with one third vesting at the Effective Time, one third vesting on the first anniversary of the Effective Time, and one third vesting on the second anniversary of the Effective Time; provided, that if a Participant is terminated without Cause (as defined in the Bakkt Equity Incentive Plan) within two years following the Effective Time, all then unvested Participation Units shall immediately vest in full. Any Participation Unit that vests in accordance with the preceding sentence shall experience a Participation Unit Payment Event (as defined in the Bakkt Equity Incentive Plan) on the date of vesting and shall be treated (including with respect to the date and amount of payment in respect thereto) as if a Participation Unit Payment Event has occurred; provided, that with respect to Participation Units that vest on the first and second anniversary of the Effective Time (or earlier upon a termination without Cause), the amount that would be payable upon a Participation Unit Payment Event occurring on such date shall be adjusted to reflect a notional investment in Bakkt Pubco Class A Shares in the principal amount equal to the amount that would have been payable had all such Participation Units experienced a Participation Unit Payment Event at the Effective Time, made as of the Effective Time and held through such Participation Unit Payment Event;

 

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and, provided, further, that any Participation Unit that vests after the date that is six months after the day the Closing occurs may be settled with Bakkt Pubco Class A Shares or Awards (as defined in the Equity Incentive Plan, based on the trading value of the Bakkt Pubco Class A Shares as of the close of business of the date of settlement), in each case equivalent in value on the day of settlement to the amount that otherwise would be payable in accordance with this Section 2.4(b) in cash.

(c) The administrator under the Bakkt Equity Incentive Plan has determined that the treatment of Bakkt Opco Incentive Units (and the corresponding interests in Bakkt Management) and Participation Units set forth in Section 2.4(a) and Section 2.4(b) is an equitable treatment contemplated and required by Section 4(c) of the Bakkt Equity Incentive Plan in order to provide participants the intended benefits of their awards under the Bakkt Equity Incentive Plan. Prior to the Closing, Bakkt Opco shall provide a written notification to all Participants under the Bakkt Equity Incentive Plan summarizing the effect the Transaction will have on Bakkt Opco Incentive Units (and the corresponding interests in Bakkt Management) and Participation Units pursuant to Section 2.4(a) and Section 2.4(b). Bakkt Opco will provide the form of such written notification to VIH and its counsel at least two (2) Business Days prior to the distribution to the Participants and shall reasonably review and consider in good faith the reasonable comments of VIH and its counsel for inclusion into such written notification.

(d) Bakkt Opco shall take all necessary actions to effect the treatment of Bakkt Opco Incentive Units (and the corresponding interests in Bakkt Management) and Participation Units pursuant to Section 2.4(a) and Section 2.4(b) in accordance with Section 2.4(a) and Section 2.4(b) and the Bakkt Equity Incentive Plan and the applicable award agreements (as modified by Section 2.4(a) and Section 2.4(b)). The Board of Managers of Bakkt Opco shall amend the Bakkt Equity Incentive Plan and take all other necessary actions, effective as of immediately prior to the Closing, in order to (i) cancel the remaining unallocated Equity Interests under the Bakkt Equity Incentive Plan and provide that Equity Interests in respect of Bakkt Opco Incentive Units and Participation Units that for any reason become re-eligible for future issuance, shall be cancelled, and (ii) provide that no new Bakkt Opco Incentive Units or Participation Units will be granted under the Bakkt Equity Incentive Plan. Bakkt Opco will provide such amendments to the Bakkt Equity Incentive Plan to VIH and its counsel at least two (2) Business Days prior to adoption and shall reasonably review and consider in good faith the reasonable comments of VIH and its counsel for inclusion in such amendments.

Section 2.5 Treatment of Bakkt Opco Warrants. At the Effective Time, in accordance with Section 2.3(b)(ii), each warrant to purchase Bakkt Interests (each, a “Bakkt Opco Warrant”) shall be converted into the right to receive, upon exercise thereof and payment of the exercise price therefor, from Surviving Company and from Bakkt Pubco the number Warrant Interests set forth opposite such warrant holder’s name on the Final Merger Consideration Spreadsheet. The Merger shall not constitute an “IPO” or a “Liquidity Event”, each as defined in the applicable Bakkt Opco Warrant. Upon exercise of a Bakkt Opco Warrant, the holder thereof shall be obligated to execute and become a party to the Surviving Company LLC Agreement, the Exchange Agreement, the Tax Receivables Agreement, the Stockholders Agreement and the Registration Rights Agreement.

 

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Section 2.6 Exchange.

(a) Promptly following the date hereof, Bakkt Opco shall mail to each Bakkt Equity Holder (i) a letter of transmittal in the form agreed to by VIH and Bakkt Opco (the “Letter of Transmittal”) and (ii) instructions for delivering the Letter of Transmittal in exchange for the Merger Consideration in accordance with this Agreement and the Final Merger Consideration Spreadsheet, as well as a request to have such Bakkt Equity Holder deliver an executed Letter of Transmittal to Bakkt Opco no less than ten (10) Business Days prior to the estimated Closing Date. Upon delivery of such Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, such Bakkt Equity Holder shall be entitled to receive in exchange therefor the Merger Consideration to which such Bakkt Equity Holder is entitled. Bakkt Opco shall provide VIH with a copy of each Letter of Transmittal it receives promptly after receipt thereof. Until delivery of a Letter of Transmittal as contemplated by this Section 2.6, each Bakkt Interest shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration payable in respect thereof in accordance with the Final Merger Consideration Spreadsheet. Upon receipt of an executed Letter of Transmittal from a Bakkt Equity Holder, Bakkt Pubco shall direct Bakkt Pubco’s transfer agent to note the ownership in the transfer agent’s books and records of the Bakkt Pubco Class V Shares issuable to such Bakkt Equity Holders as Merger Consideration.

(b) The Merger Consideration issued and paid upon the delivery for exchange of Bakkt Interests in accordance with the terms of this Article II shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to the Bakkt Interests formerly outstanding. At the Effective Time, the membership transfer books of Bakkt Opco shall be closed and there shall be no further registration of transfers of the Bakkt Interests that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Bakkt Interests are presented to Bakkt Pubco for transfer, such Bakkt Interests shall be cancelled and exchanged as provided in this Article II.

(c) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional Bakkt Pubco Class V Shares or Surviving Company Common Units shall be issued upon the delivery of the Merger Consideration to the Bakkt Equity Holders, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a VIH Shareholder or member of the Surviving Company. No payment shall be made with respect to fractional Surviving Company Common Units or Bakkt Pubco Class V Shares, and the number thereof shall be rounded down to the nearest whole number.

(d) None of VIH, Surviving Company, Bakkt Pubco or any other Person shall be liable to any Person in respect of Bakkt Pubco Class V Shares or Surviving Company Common Units (or any dividends or other distributions with respect thereto) or cash (if applicable) properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

Section 2.7 Closing Statement; Determination of Available Cash. On the date the right of Redemption expires, Bakkt Opco and VIH shall jointly prepare and deliver a statement (the “Closing Statement”) that sets forth the Parties’ good faith determination of the Available Cash and the components thereof, including the amount of funds available in the Trust Account following the Redemption, the gross proceeds of the PIPE Financing, the Bakkt Transaction Expenses, the VIH Transaction Expenses and a determination as to whether Available Cash is at least equal to the Minimum Available Cash.

 

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Section 2.8 Withholding Rights. VIH (or Bakkt Pubco) and Bakkt Opco (or Surviving Company) (and any of their respective Representatives) shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted or withheld with respect to the making of such payment under the Code or any other provision of applicable Laws; provided, however, that the relevant payor will (a) provide written notice to the relevant payee at least ten (10) days prior to any such deduction or withholding (other than with respect to compensatory payments, if any) and (b) use commercially reasonable efforts to cooperate with the relevant payee prior to the making of such deductions and withholding payments to determine whether any such deductions or withholding payments (other than with respect to compensatory payments, if any) are required under applicable Law and in obtaining any available exemption or reduction of, or otherwise minimizing to the extent permitted by applicable Law, such deduction and withholding. To the extent that such withheld amounts are paid over to or deposited with the applicable Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding were made.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF BAKKT OPCO

Bakkt Opco makes the following representations and warranties to VIH and Merger Sub as of the date of this Agreement and as of the Closing, except as disclosed by Bakkt Opco in the written Bakkt Disclosure Letter provided to VIH dated as of the date of this Agreement (the “Bakkt Disclosure Letter”), which shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article III. The disclosure in any section or subsection of the Bakkt Disclosure Letter corresponding to any section or subsection of this Article III shall qualify other sections and subsections in this Article III so long as its relevance to such other section or subsection of this Article III is reasonably clear on the face of the information disclosed therein.

Section 3.1 Due Organization.

(a) Bakkt Opco is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and has all necessary limited liability company or other power and authority to carry on its business as is currently conducted. Except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole, Bakkt Opco is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the operation of its business as currently conducted makes such licensing or qualification necessary.

(b) Except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole, each of the Subsidiaries of Bakkt Opco is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation, has all necessary limited liability company or other power and authority to carry on its business as is currently

 

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conducted and is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the operation of its business as currently conducted makes such licensing or qualification necessary. Each of Bakkt Opco and its Subsidiaries are not in violation of any provision of their respective Organizational Documents in any material respect.

(c) Section 3.1(c) of the Bakkt Disclosure Letter lists for each of Bakkt Opco and its Subsidiaries the jurisdiction of organization, all jurisdictions in which it is so qualified to conduct business and all names other than its legal name under which it does business. Bakkt Opco has provided or made available to VIH accurate and complete copies of the Organizational Documents of Bakkt Opco and each of its Subsidiaries as amended to date and as currently in effect.

Section 3.2 Authorization; No Conflict.

(a) Bakkt Opco has full limited liability company power and authority to enter into this Agreement and the Transaction Documents to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by Bakkt Opco of this Agreement and the Transaction Documents to which it is a party, the performance by Bakkt Opco of its obligations hereunder and thereunder and the consummation by Bakkt Opco of the Transactions have been duly authorized by all requisite limited liability company action on the part of Bakkt Opco. This Agreement has been duly and validly executed and delivered by Bakkt Opco, and (assuming due authorization, execution and delivery by any other applicable parties thereto) constitutes, or upon such delivery constitutes, a legal, valid and binding obligation of Bakkt Opco enforceable against Bakkt Opco in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) (the “Enforcement Exceptions”). Bakkt Opco’s Board of Managers, unanimously and in accordance with Bakkt Opco’s Organizational Documents: (i) determined that this Agreement, the Transaction Documents and the Merger and the other Transactions are advisable, fair to, and in the best interests of, Bakkt Opco and its members, (ii) approved this Agreement, the Transactions and the Merger and the other Transactions in accordance with the DLLCA, (iii) directed that this Agreement be submitted to Bakkt Opco’s members for adoption and (iv) recommended that Bakkt Opco’s members adopt this Agreement. The Bakkt Equity Holders Approval constitutes the requisite vote of the holders of Bakkt Interests to adopt and approve this Agreement, the Transaction Documents, the Merger and the other Transactions in accordance with the DLLCA and Bakkt Opco’s Organizational Documents.

(b) Except the required Regulatory Filings, or as otherwise set forth on Section 3.2(b) of the Bakkt Disclosure Letter, the execution, delivery and performance of this Agreement and the Transaction Documents by Bakkt Opco and its Subsidiaries, and the consummation of the Transactions, do not and will not, with or without notice, lapse of time or both: (i) conflict with or result in a breach or violation of the Organizational Documents of Bakkt Opco or any of its Subsidiaries; (ii) require any material consent, waiver, approval, declaration or authorization of, or notice to or filing with, any Governmental Authority; or (iii) violate, conflict with, result in a breach or default under (with notice or lapse of time or both), result in, or give any Person a right of, termination, cancellation, acceleration, suspension, modification or revocation under, give rise

 

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to any obligation to make payments or provide compensation under, result in the creation of any Lien upon any of the properties or assets of Bakkt Opco or any of its Subsidiaries under, give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback or penalty, accelerate the maturity or performance under, or require any consent, waiver, approval, notice, filing, declaration or authorization under, any Material Contract or any material Permit necessary to, in each case in all material respects, lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties (each a “Material Permit”).

Section 3.3 Capitalization.

(a) Section 3.3(a) of the Bakkt Disclosure Letter sets forth a correct and complete list of all of the issued and outstanding, or reserved for issuance, limited liability company interests or other Equity Interests of Bakkt Opco and each of its Subsidiaries set forth on Section 3.1(c) of the Bakkt Disclosure Letter and the holders thereof. All outstanding Equity Interests in Bakkt Opco and each of its Subsidiaries (i) have been duly authorized and validly issued, (ii) with respect to the Subsidiaries of Bakkt Opco that are corporations, are fully paid and nonassessable, (iii) were not issued in violation of (or subject to) any preemptive rights (including any preemptive rights set forth in the Organizational Documents of Bakkt Opco or such Subsidiary, as applicable), rights of first refusal or similar rights and (iv) are owned free and clear of any Liens other than those created or imposed (x) under Bakkt Opco’s or any of its Subsidiaries’ Organizational Documents, as applicable, (y) under applicable securities Laws or (z) except to the extent Bakkt Opco has actual knowledge (without having conducted any investigation or inquiry) thereof, by Persons other than the Majority Bakkt Equity Holder, Bakkt Opco or any of Bakkt Opco’s Subsidiaries. Except as set forth in Section 3.3(a) of the Bakkt Disclosure Letter there are no options, warrants, equity securities, calls, rights, commitments or agreements (including agreements for convertible equity securities) to which Bakkt Opco or any of its Subsidiaries is a party or by which Bakkt Opco or any of its Subsidiaries is bound obligating Bakkt Opco or such Subsidiary, as applicable, to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold additional Equity Interests of Bakkt Opco or any of its Subsidiaries or obligating the Bakkt Opco or any of its Subsidiaries to enter into any commitment or agreement containing such obligation. As a result of the consummation of the Transactions, except as expressly contemplated by this Agreement and the Transaction Documents, no Equity Interests of Bakkt Opco or any of its Subsidiaries are issuable.

(b) All of the issued and outstanding Equity Interests of Bakkt Opco and its Subsidiaries have been granted, offered, sold and issued in material compliance with all applicable securities Laws. Except as set forth in the Organizational Documents of Bakkt Opco or its Subsidiaries, as applicable, there are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Equity Interests of Bakkt Opco or its Subsidiaries. Except as set forth in the Organizational Documents of Bakkt Opco or its Subsidiaries, as applicable, there are no outstanding contractual obligations of Bakkt Opco or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Equity Interests of Bakkt Opco or any of its Subsidiaries, nor has Bakkt Opco or any of its Subsidiaries granted any registration rights to any Person with respect to any Equity Interests of Bakkt Opco or any of its Subsidiaries. As a result of the consummation of the Transactions, except as expressly contemplated by this Agreement and the Transaction Documents, no rights in connection with any interests, warrants, rights, options or other securities of Bakkt Opco or any of its Subsidiaries accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).

 

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(c) Except as set forth on Section 3.3(c) of the Bakkt Disclosure Letter, neither Bakkt Opco nor any of its Subsidiaries owns any Equity Interest in any Person (other than Bakkt Opco or one of its Subsidiaries), nor are such parties a participant in any joint venture, partnership, limited liability company, trust, association or other noncorporate entity (other than Bakkt Opco or any of its Subsidiaries). There are no outstanding contractual obligations of Bakkt Opco or any of its Subsidiaries to make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

Section 3.4 Financial Statements.

(a) Section 3.4(a) of the Bakkt Disclosure Letter sets forth the true, correct and complete copies of the following financial statements (collectively, the “Financial Statements”): (i) each of Bakkt Opco’s audited consolidated financial statements consisting of the consolidated balance sheets as of December 31, 2019 and December 31, 2018, respectively, and the related statements of income, statements of members’ equity and statements of cash flows for period beginning upon the formation of Bakkt Opco on July 31, 2018 (the “Formation Date”) through December 31, 2018 and the year ended December 31, 2019; and (ii) Bakkt Opco’s unaudited consolidated balance sheet as of November 30, 2020 (the “Most Recent Balance Sheet Date”) and the related statement of income and statement of cash flows for the eleven (11) months then ended. Subject, in the case of unaudited interim period financial statements, to the absence of footnotes and normal recurring year-end audit adjustments applied consistent with past practice, none of which are or would be material, individually or in the aggregate, the Financial Statements (including the notes thereto) and the PCAOB Financial Statements will, when delivered to VIH pursuant to Section 5.9(b): (i) have been prepared from the Books and Records of Bakkt Opco and its Subsidiaries and (except as may be indicated in the notes thereto) in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis in accordance with past practices throughout the periods covered thereby, and (ii) fairly present in all material respects the consolidated financial condition and results of operations and cash flows of Bakkt Opco and its Subsidiaries as of the dates, and for the periods, indicated thereon. Since the Most Recent Balance Sheet Date, there have been no material changes in the accounting policies of the Bakkt Opco or any of its Subsidiaries and no revaluation of the Bakkt Opco’s or any of its Subsidiaries’ properties or assets. None of Bakkt Opco or any of its Subsidiaries are subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. The PCAOB Financial Statements, when delivered by VIH for inclusion in the Registration Statement, including the Proxy Statement, for filing with the SEC following the date of this Agreement in accordance with Section 5.9(b), will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC and the Securities Act in effect as of such date.

(b) The independent auditor for Bakkt Opco, with respect to its report as will be included in the PCAOB Financial Statements, is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC and, with respect to the PCAOB Financial Statements, the PCAOB.

 

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(c) Bakkt Opco and its Subsidiaries maintain, in all material respects, accurate and complete books and records reflecting the assets and Liabilities of Bakkt Opco and its Subsidiaries and maintain, in all material respects, proper and adequate internal accounting controls that are designed to provide reasonable assurance that (i) transactions are executed with management’s authorization and (ii) transactions are recorded as necessary to permit preparation of the financial statements of Bakkt Opco and its Subsidiaries and to maintain accountability for Bakkt Opco’s and its Subsidiaries’ assets and Liabilities. Neither Bakkt Opco nor any of its Subsidiaries has been subject to or involved in any fraud that involves management or other employees who have a significant role in the internal controls over financial reporting of Bakkt Opco or any of its Subsidiaries. From the Formation Date, neither Bakkt Opco nor any of its Subsidiaries has received any adverse material written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures or methodologies of Bakkt Opco or any of its Subsidiaries or their internal accounting controls. Neither Bakkt Opco nor any of its Subsidiaries have any Bakkt Indebtedness other than the Bakkt Indebtedness as set forth on Section 3.4(c) of the Bakkt Disclosure Letter, and in such amounts (including principal and any accrued but unpaid interest), as set forth on Section 3.4(c) of the Bakkt Disclosure Letter.

(d) Except as set forth on Section 3.4(d) of the Bakkt Disclosure Letter, Bakkt Opco and its Subsidiaries do not have any material liabilities or obligations (whether accrued, absolute, contingent, unknown or otherwise) of the type required to be accrued on or reserved against in a consolidated balance sheet prepared in accordance with GAAP (collectively, “Liabilities”), except (i) Liabilities accrued on or reserved against in the Most Recent Balance Sheet or disclosed in the notes thereto or in the notes to the other Financial Statements, (ii) Liabilities that have arisen since the date of the Most Recent Balance Sheet in the ordinary course of business, (iii) Liabilities incurred in connection with the Transactions, and (iv) Liabilities disclosed on another section of the Bakkt Disclosure Letter.

Section 3.5 Absence of Changes. Since the Most Recent Balance Sheet Date, except for any actions expressly contemplated by this Agreement (including under Section 5.1), the Transaction Documents or the Transactions, (a) Bakkt Opco and each of its Subsidiaries has conducted its business in the ordinary course of business in all material respects, (b) there has not been any event, action or omission that, if taken or omitted during the period from the date of this Agreement through the Effective Time, would constitute a violation of Section 5.1, and (c) there has not been any Material Adverse Effect.

Section 3.6 Real Property.

(a) Neither Bakkt Opco nor any of its Subsidiaries owns or has owned since the Formation Date, any Real Property. Neither Bakkt Opco nor any of its Subsidiaries is a party to any Real Property Lease other than the Bakkt Leased Real Property set forth in Section 3.6(b) of the Bakkt Disclosure Letter.

(b) Section 3.6(b) of the Bakkt Disclosure Letter sets forth a correct and complete listing of all Bakkt Leased Real Property (including street address, lessor and lessee). Except as would not be material to Bakkt Opco and its Subsidiaries, taken as a whole, either Bakkt Opco or its Subsidiaries, as applicable, has a valid leasehold interest to the leasehold estate in the Bakkt Leased Real Property granted to Bakkt Opco or such Subsidiary, as applicable, pursuant to

 

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the applicable Real Property Lease (subject to Permitted Liens), a true and correct copy of which (including all material amendments and modifications thereof or material waivers thereto) has been provided or made available to VIH prior to the date hereof. Except as set forth on Section 3.6(b) of the Bakkt Disclosure Letter, there are no parties other than Bakkt Opco and/or its Subsidiaries in possession of or having the right to use or occupy any portion of the Bakkt Leased Real Property, and, to the knowledge of the Bakkt Opco, no Contract grants any Person (other than Bakkt Opco and its Subsidiaries) the right of use or occupancy of any portion of the Bakkt Leased Real Property.

(c) To the knowledge of Bakkt Opco, there are no pending or threatened condemnation proceedings, lawsuits or administrative actions relating to any portion of the Bakkt Real Property, nor has Bakkt Opco or any of its Subsidiaries received notice of any pending or threatened special assessment proceedings affecting any portion of the Bakkt Real Property.

Section 3.7 Assets.

(a) Except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole, (i) Bakkt Opco and its Subsidiaries, collectively, have good and valid title to, or a valid leasehold interest in, all of the assets, properties, and rights owned or leased by, or otherwise used in the business of, Bakkt Opco and its Subsidiaries, free and clear of all Liens (other than Permitted Liens) and (ii) all of the tangible assets, properties and rights owned by Bakkt Opco and its Subsidiaries have been maintained in a reasonably prudent manner and are in good operating condition and repair, ordinary wear and tear excepted and are located on the Bakkt Leased Real Property. None of Bakkt Opco or any of its Subsidiaries is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

(b) The assets, properties and rights owned or leased by, or otherwise used in the business of, Bakkt Opco and its Subsidiaries, collectively with the assets and services provided to Bakkt Pubco and Bakkt Opco and its Subsidiaries under the Contracts set forth on Section 3.19 of the Bakkt Disclosure Letter, constitute all of the material assets necessary to conduct the business of the Bakkt Opco and its Subsidiaries immediately after the Closing, in all material respects, as it has been operated for the previous six (6) months.

Section 3.8 Taxes.

(a) Bakkt Opco is treated as a partnership for U.S. federal income tax purposes and will be so classified for all periods through and including the Closing Date, and at all times since its formation, Bakkt Opco has been treated either as an entity disregarded as separate from its owner or as a partnership for U.S. federal income tax purposes. Except as set forth on Section 3.8(a) of the Bakkt Disclosure Letter, each of Bakkt Opco’s Subsidiaries is, and at all times since its formation has been, treated as a disregarded entity for U.S. federal income tax purposes and will be so classified for all periods through and including the Closing Date.

(b) Except as set forth on Section 3.8(b) of the Bakkt Disclosure Letter, each of Bakkt Opco and its Subsidiaries has timely filed (taking into account applicable extensions) all material Tax Returns that it was required to file and such Tax Returns are correct and complete in all material respects. Neither Bakkt Opco nor any of its Subsidiaries is currently the beneficiary of any extension of time within which to file any material Tax Return other than extensions of time to file Tax Returns obtained in the ordinary course of business.

 

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(c) Except as set forth on Section 3.8(c) of the Bakkt Disclosure Letter, all material Taxes and all material Tax liabilities of Bakkt Opco and its Subsidiaries that are due and payable have been timely paid in full to the appropriate taxing authorities. Any such Taxes or Tax liabilities that relate to a Pre-Closing Tax Period that are not yet due and payable (i) for periods covered by the Financial Statements have been properly accrued and adequately disclosed on the Financial Statements in accordance with GAAP, and (ii) for periods not covered by the Financial Statements have been properly accrued on the books and records of Bakkt Opco and its Subsidiaries in accordance with GAAP.

(d) Except as set forth on Section 3.8(d) of the Bakkt Disclosure Letter, Bakkt Opco and each of its Subsidiaries have withheld or collected all material Taxes required by Law to have been withheld or collected and, to the extent required, timely paid over such Taxes to the appropriate Governmental Authorities.

(e) Except as set forth on Section 3.8(e) of the Bakkt Disclosure Letter, neither Bakkt Opco nor any of its Subsidiaries is currently, nor has been within the past three (3) years, the subject of any material Tax Proceeding by any Governmental Authority and no such Tax Proceeding is pending or, to the knowledge of Bakkt Opco or its Subsidiaries, threatened or contemplated.

(f) Except as set forth on Section 3.8(f) of the Bakkt Disclosure Letter, neither Bakkt Opco nor any of its Subsidiaries has waived any statute of limitations with respect to material Taxes or agreed to extend the period for assessment or collection of any material Taxes, which waiver or extension is still in effect. Neither Bakkt Opco nor any of its Subsidiaries is presently contesting a material Tax liability of Bakkt Opco or such Subsidiary, as applicable, before any taxing authority or other Governmental Authority.

(g) There are no Liens for Taxes upon the assets of Bakkt Opco or any of its Subsidiaries other than Permitted Liens.

(h) Except as set forth on Section 3.8(h) of the Bakkt Disclosure Letter, no written claim has been made within the past three (3) years by any taxing authority in a jurisdiction where Bakkt Opco or any of its Subsidiaries does not file Tax Returns that Bakkt Opco or such Subsidiary, as applicable, is or may be subject to material taxation by that jurisdiction.

(i) Except as set forth on Section 3.8(i) of the Bakkt Disclosure Letter, neither Bakkt Opco nor any of its Subsidiaries will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) ending after the Closing Date as a result of any of the following that occurred or exists on or prior to the Closing Date: (i) a “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); (ii) an installment sale or open transaction; (iii) any prepaid amounts or deferred revenue realized, accrued or received, in each case, outside the ordinary course of business; or (iv) a change in the accounting method of Bakkt Opco or any of its

 

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Subsidiaries pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding Tax Laws of any nation, state or locality.

(j) Neither Bakkt Opco nor any of its Subsidiaries has any Liabilities for material Taxes of any other Person (other than Bakkt Opco or any of its Subsidiaries) as a successor or transferee, by Contract, by operation of Law, or otherwise (other than pursuant to any Commercial Tax Agreement). Neither Bakkt Opco nor any of its Subsidiaries is party to or bound by any Tax Sharing Agreement.

(k) Neither Bakkt Opco nor any of its Subsidiaries has engaged in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).

(l) No election has been made under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to Bakkt Opco or any of its Subsidiaries.

Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 3.8 and Section 3.9 are the only representations and warranties of Bakkt Opco with respect to Tax matters.

Section 3.9 Employee Benefit Plans.

(a) Section 3.9(a) of the Bakkt Disclosure Letter sets forth a complete list of each material Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan. With respect to each material Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan, Bakkt Opco has made available to VIH, to the extent applicable, true, complete and correct copies of (A) such Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan (or, if not written, a written summary of its material terms) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (B) the most recent summary plan descriptions, including any summary of material modifications, (C) the three (3) most recent annual reports (Form 5500 series) filed with the Internal Revenue Service (“IRS”) with respect to such Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan, (D) the most recent actuarial report or other financial statement relating to such Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to such Bakkt Benefit Plan, Bakkt Benefit Arrangement and Parent Benefit Plan and any pending request for such a determination letter and (F) all material correspondence to or from the IRS, the United States Department of Labor (“DOL”), the Pension Benefit Guaranty Corporation or any other Governmental Authority received in the last three (3) years with respect to such Bakkt Benefit Plan, Bakkt Benefit Arrangement or Parent Benefit Plan.

(b) Each Qualified Plan has received a favorable determination letter, or is the subject of a favorable advisory or opinion letter as to its qualification, issued by the IRS to the effect that such plan is qualified and the trust related thereto is exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the knowledge of Bakkt Opco, no act or omission in the operation of such plan has occurred that would reasonably be expected to adversely affect its qualified status. Each Bakkt Benefit Plan and each Bakkt Benefit

 

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Arrangement has been administered in all material respects in accordance with its terms and with all applicable Laws, including ERISA, the Code, the Patient Protection and Affordable Care Act (“ACA”) and the Health Insurance Portability and Accountability Act. Neither Bakkt Opco nor any of its Subsidiaries is liable for any penalty or excise taxes assessable under ACA. Each individual classified as an independent contractor or other non-employee classification by Bakkt Opco or any of its Subsidiaries has been properly classified for purposes of participation and benefit accrual under each Bakkt Benefit Plan and Bakkt Benefit Arrangement, except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole. No Bakkt Benefit Plan or Bakkt Benefit Arrangement is maintained outside the jurisdiction of the United States or covers any employees or other service providers of Bakkt Opco or any of its Subsidiaries who reside or work outside of the United States.

(c) Neither Bakkt Opco nor any of its Subsidiaries has, from the Formation Date maintained, sponsored or been required to contribute to any Pension Plan or Multiemployer Plan. There are no current or contingent Liabilities that would be imposed upon Bakkt Opco or any of its Subsidiaries with respect to any Pension Plan or Multiemployer Plan maintained or previously maintained by an ERISA Affiliate or former ERISA Affiliate.

(d) Neither Bakkt Opco, any Bakkt Benefit Plan or Bakkt Benefit Arrangement, nor, to the knowledge of Bakkt Opco, any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA or Section 4975 of the Code applies and which would subject Bakkt Opco or any ERISA Affiliate to the tax or penalty on prohibited transactions imposed by Section 4975 of the Code, which, assuming the taxable period of such transaction expired as of the date hereof, would be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole.

(e) There are no pending or, to the knowledge of Bakkt Opco, threatened Action or claims by, on behalf of, against or relating to any Bakkt Benefit Plan or Bakkt Benefit Arrangement (including any such claims against any fiduciary of any such Bakkt Benefit Plan or Bakkt Benefit Arrangement) or trust related thereto, which would be materially adverse to Bakkt Opco or its Subsidiaries, taken as a whole. No Bakkt Benefit Plan or Bakkt Benefit Arrangement has received notice of an audit or examination by any Governmental Authority (including the IRS and the DOL) from such Governmental Authority.

(f) No Bakkt Benefit Plan or Bakkt Benefit Arrangement contains any provision or is subject to any Law that, as a result of the Transactions or upon related, concurrent, or subsequent employment termination, would require or provide any payment or compensation that would constitute an “excess parachute payment” under Section 280G of the Code. No Bakkt Benefit Plan or Bakkt Benefit Arrangement contains any provision or is subject to any Law that would promise or provide any tax gross ups or tax indemnification under Sections 280G or 409A of the Code.

 

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(g) Except as expressly contemplated by this Agreement and the Transaction Documents, neither the execution and delivery of this Agreement nor the consummation of the Transactions contemplated hereunder (either alone or upon the occurrence of any additional or subsequent events or the passage of time) will (i) cause any compensatory payment or benefit, including any retention, bonus, fee, distribution, remuneration, severance or other compensation payable to any Person who is or has been an employee of or independent contractor to Bakkt Opco or one of its Subsidiaries (other than salaries, wages, or bonuses payable in the ordinary course of business) to increase or become due to any such Person, (ii) accelerate the time of payment, accrual, vesting, or funding of, creation of, or other rights in respect of any rights of any Person to benefits under any Bakkt Benefit Plan or Bakkt Benefit Arrangement, (iii) result in forgiveness of indebtedness with respect to any employee of Bakkt Opco or one of its Subsidiaries or (iv) trigger any funding obligation under any Bakkt Benefit Plan or Bakkt Benefit Arrangement.

(h) No Bakkt Benefit Plan or Bakkt Benefit Arrangement provides for post-employment medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of Bakkt Opco or any Subsidiary, other than as required by COBRA or other applicable Laws, and none of Bakkt Opco or any of its Subsidiaries has any obligation to provide such benefits.

(i) The Bakkt Benefit Plans and Bakkt Benefit Arrangements have been documented and administered in accordance with Section 409A of the Code in all material respects.

(j) Each Parent Benefit Plan has been administered in all material respects in accordance with its terms and with all applicable Laws, except as would be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole.

Section 3.10 Labor Matters.

(a) There are no material unresolved labor controversies (including unresolved grievances or discrimination claims) that are pending or, to the knowledge of Bakkt Opco, threatened between Bakkt Opco or one of its Subsidiaries and Persons who are or have been employees of Bakkt Opco or one of its Subsidiaries.

(b) Except as set forth in Section 3.10(b) of the Bakkt Disclosure Letter, (i) neither Bakkt Opco nor any of its Subsidiaries is a party to or bound by any collective bargaining agreement, trade union agreement, works council, or employee representative agreement, (ii) no such agreement is currently being negotiated, requested by, or is under discussion by Bakkt Opco or any of its Subsidiaries with, any employee or employee representative body, and (iii) there is no effort by or on behalf of any labor union or other collective labor organization to organize or represent any employees of Bakkt Opco or any of its Subsidiaries, and there have been no such efforts since the Formation Date, and no such organizing effort is threatened, and (iv) there are no representation or certification proceedings or petitions seeking a representation proceeding pending, threatened in writing, or to the knowledge of the Bakkt Opco, otherwise threatened to be brought or filed with the National Labor Relations Board or any other applicable labor relations authority. In the past three (3) years, there has been no actual or, to the knowledge of Bakkt Opco, threatened strike, slowdown, work stoppage, labor organization activity, lockout or other material labor dispute or similar activity against or affecting Bakkt Opco or any of its Subsidiaries.

 

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(c) Bakkt Opco and each of its Subsidiaries is and have been for the past three (3) years, in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, health and safety and wages and hours, and other Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, payment for leave, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations, and has not received written or, to the knowledge of Bakkt Opco, oral notice that there is any pending Action involving unfair labor practices against Bakkt Opco or one of its Subsidiaries.

(d) In the past three (3) years, Bakkt Opco and its Subsidiaries have not received (i) notice of any unfair labor practice charge or material complaint pending or threatened before the National Labor Relations Board or any other Governmental Authority against them, (ii) notice of any complaints, grievances or arbitrations arising out of any collective bargaining agreement, (iii) notice of any material charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Authority responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health Laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any material complaint, lawsuit or other proceeding pending or threatened in any forum by or on behalf of any present or former employee of such entities, any applicant for employment or classes of the foregoing alleging breach of any express or implied Contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship.

(e) To the knowledge of Bakkt Opco, no present or former employee, worker or independent contractor of Bakkt Opco or any of its Subsidiaries is in material violation of (i) any restrictive covenant, nondisclosure obligation or fiduciary duty to Bakkt Opco or any of its Subsidiaries or (ii) any restrictive covenant or nondisclosure obligation to a former employer or engager of any such individual relating to (A) the right of any such individual to work for or provide services to Bakkt Opco or any of its Subsidiaries or (B) the knowledge or use of Trade Secrets, except for any such violation that would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole.

(f) In the past three (3) years, Bakkt Opco and its Subsidiaries have not engaged in layoffs, furloughs or employment terminations sufficient to trigger application of the Workers’ Adjustment and Retraining Notification Act or any similar state or local law relating to group terminations. Bakkt Opco and its Subsidiaries have not engaged in layoffs or furloughs or effected any broad-based salary or other compensation or benefits reductions as a result of or in response to the COVID-19 virus, in each case, whether temporary or permanent, since January 1, 2020.

 

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(g) In the past three (3) years, (i) no allegations of sexual harassment or sexual misconduct have been made or threatened in writing, or, to the knowledge of Bakkt Opco, otherwise threatened to be made, against or involving any current or former officer, director or other employee at the level of Vice President or above by any current or former officer, employee or individual service provider of Bakkt Opco or any of its Subsidiaries, and (ii) neither Bakkt Opco nor any of its Subsidiaries has entered into any settlement agreements resolving, in whole or in part, allegations of sexual harassment or sexual misconduct by any current or former officer, director or other key employee.

Section 3.11 Compliance; Permits.

(a) Bakkt Opco is and has been since the Formation Date and each Bakkt Opco Subsidiary is and has been since the later of (i) its respective formation date, (ii) the date on which it was acquired by Bakkt Opco and (iii) the date that is five (5) years prior to the date hereof, conducting its business and operations in compliance in all material respects with all applicable Laws and Material Permits. Neither Bakkt Opco nor its Subsidiaries have received any written or, to the knowledge of the Bakkt Opco, oral communication from any Governmental Authority since the later of (i) such entity’s respective formation date, (ii) the date on which it was acquired by Bakkt Opco and (iii) the date that is five (5) years prior to the date hereof, alleging noncompliance in any material respect with any applicable Law.

(b) Bakkt Opco and each of its Subsidiaries owns or holds the Material Permits. Section 3.11(b) of the Bakkt Disclosure Letter sets forth a correct and complete list and expiration dates of each Material Permit as of the date hereof. As of the date hereof, all of the Material Permits are in full force and effect, and no Action is pending, or, to Bakkt Opco’s knowledge, threatened seeking the suspension or cancellation of any of the Material Permits. As of the date hereof, neither Bakkt Opco nor any of its Subsidiaries is in material default or material violation (and no event has occurred that, with notice or the lapse of time or both, would constitute a material default or material violation) of any term, condition or provision of any of its Material Permits.

Section 3.12 Legal Proceedings. Except as set forth on Section 3.12 of the Bakkt Disclosure Letter, there is no Action pending or, to the knowledge of Bakkt Opco, threatened in writing, against Bakkt Opco or any of its Subsidiaries (and no Action has been brought, or to Bakkt Opco’s knowledge, threatened, since January 1, 2018), and no notice of any Action involving or relating to Bakkt Opco or any of its Subsidiaries, whether pending or threatened, has been received by Bakkt Opco or any of its Subsidiaries in each case, except as would not be material to Bakkt Opco and its Subsidiaries, taken as a whole. To the knowledge of Bakkt Opco, as of the date hereof, there are no material investigations or Orders pending or rendered by a Governmental Authority against Bakkt Opco or any of its Subsidiaries.

Section 3.13 Contracts and Commitments.

(a) Section 3.13(a) of the Bakkt Disclosure Letter sets forth a correct and complete list of the following Contracts to which Bakkt Opco or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.13(a) of the Bakkt Disclosure Letter collectively, the “Material Contracts”):

 

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(i) each Contract that involved the expenditure or receipt by Bakkt Opco and its Subsidiaries of more than $150,000 in the aggregate during the twelve (12)-month period ending on December 31, 2019 or would involve the expenditure or receipt by Bakkt Opco and its Subsidiaries of more than $150,000 in the aggregate in the twelve (12)-month period ending December 31, 2020;

(ii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Bakkt Benefit Plans and Bakkt Benefit Arrangements);

(iii) each Contract evidencing indebtedness in excess of $150,000, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;

(iv) each Contract that prohibits the payment of dividends or distributions in respect of the Equity Interests of Bakkt Opco or its Subsidiaries or the pledging of the Equity Interests of Bakkt Opco or its Subsidiaries;

(v) all management and consultant contracts (excluding Contracts for employment or that do not exceed annual fees of $200,000 per year), including any Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Bakkt Opco or its Subsidiaries or income or revenues related to any product or service of Bakkt Opco or its Subsidiaries;

(vi) each Real Property Lease;

(vii) each license, in each case that is material to the business of Bakkt Opco or any of its Subsidiaries, pursuant to which Bakkt Opco or any of its Subsidiaries grants or receives rights in, or to use, any material Intellectual Property, except Contracts for (A) off-the-shelf Software with annual fees that do not exceed annual fees of $150,000 per year which are readily commercially available, and (B) Intellectual Property granted by Bakkt Opco or any of its Subsidiaries to customers in the ordinary course of business or service providers solely for the purpose of performing services on Bakkt Opco’s or any of its Subsidiaries’ behalf;

(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of Bakkt Opco and its Subsidiaries, taken as a whole, (B) acquisition of any significant portion of the assets or business or any Equity Interests (whether by merger, consolidation, purchase of equity or assets or otherwise) of any other Person (other than in the ordinary course of business), or (C) acquisition of at least one percent (1%) of Equity Interests of Bakkt Opco or any of its Subsidiaries (other than by Bakkt Opco and its Subsidiaries and any exercise of Bakkt Opco Warrants and Bakkt Opco Incentive Units), in each case, entered into since the Formation Date;

(ix) each Contract that limits or purports to limit, directly or indirectly, the freedom of Bakkt Opco or its Subsidiaries (A) to compete in any line of business or with any Person or engage in any line of business within any geographic area, or restricts, directly or indirectly, Bakkt Opco’s or its Subsidiaries’ ability to solicit or hire any Person or solicit business from any Person or (B) from purchasing or acquiring an interest in any other Person;

 

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(x) each Contract that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which Bakkt Opco or its Subsidiaries would be required to, directly or indirectly, purchase or sell, as applicable, any securities, capital stock or other interests, assets or business of any other Person;

(xi) each Contract concerning the establishment or operation of a partnership, joint venture, profit or revenue sharing, limited liability company, trust, association, any noncorporate entity or similar enterprise;

(xii) any collective bargaining (or similar) agreement or Contract between Bakkt Opco or any of its Subsidiaries, on one hand, and any labor union or other body representing employees of Bakkt Opco or any of its Subsidiaries, on the other hand;

(xiii) each Contract that is an exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;

(xiv) each Contract entered into in connection with a material settlement under which Bakkt Opco or any of its Subsidiaries has material outstanding obligations;

(xv) each supervisory Contract with a Governmental Authority and terms of conditional approvals from any Governmental Authority for any License or Permit other than Contracts for which the disclosure is prohibited by applicable Law; or

(xvi) will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by Bakkt Opco as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if Bakkt Opco was the registrant.

(b) Except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole, (i) each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of Bakkt Opco or its applicable Subsidiary and, to the knowledge of Bakkt Opco, each other party thereto (subject in each case to the Enforcement Exceptions); and (ii) neither Bakkt Opco, any of its Subsidiaries nor, to the knowledge of Bakkt Opco, any other party to any Material Contract, is in material violation, material breach or material default under, any Material Contract, and, to the knowledge of Bakkt Opco, there exists no condition or event which, after notice, lapse of time or both, would constitute any such violation, breach or default; (iii) neither Bakkt Opco nor any of its Subsidiaries has received written, or to the knowledge of Bakkt Opco, oral notice of default or termination under any Material Contract; and (iv) neither Bakkt Opco nor its Subsidiaries have waived any material rights under any Material Contract.

 

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Section 3.14 Intellectual Property.

(a) Except as would not be materially adverse to Bakkt Opco or any of its Subsidiaries, (i) all of the Intellectual Property registrations and applications that are owned by Bakkt Opco or any of its Subsidiaries in any jurisdiction, alone or jointly with others (collectively, “Registered Bakkt IP”) are registered or filed in the name of Bakkt Opco or one of its Subsidiaries, without any Liens (except Permitted Liens) and with all fees paid and other filings made to the extent required to maintain such Registered Bakkt IP and protect the ownership interests of Bakkt Opco or its Subsidiaries therein, (ii) to the knowledge of Bakkt Opco, all of the Registered Bakkt IP, excluding applications, are valid and enforceable.

(b) Except as would not be material to Bakkt Opco or any of its Subsidiaries, (i) each item of Intellectual Property required for the operation of the business of Bakkt Opco or any of its Subsidiaries as it is currently conducted is owned by Bakkt Opco or its relevant Subsidiary or otherwise licensed by Bakkt Opco or such relevant Subsidiary for use as it is currently used or contemplated for use, and (ii) Bakkt Opco, together with its Subsidiaries, owns or otherwise has the right to use all Bakkt IP free and clear of any (x) Liens (except Permitted Liens), (y) Orders restricting its use, and (z) without obligations on Bakkt Opco or its Subsidiaries to pay royalties, licensing fees or any other duty of accounting to any third party.

(c) Except as would not be material to Bakkt Opco or any of its Subsidiaries, (i) Bakkt Opco and each of its Subsidiaries has taken commercially reasonable measures to maintain and protect the secrecy and confidentiality of all Trade Secrets and other confidential information, in each case, included in the Bakkt IP, and (ii) to the knowledge of Bakkt Opco, there has been no misappropriation or unauthorized disclosure of any such Trade Secrets including (x) no violations of the policies or practices of Bakkt Opco or its Subsidiaries related to the protection of the Trade Secrets included in the Bakkt IP or (y) breaches by any Person of any confidentiality or nondisclosure contract relating to the Trade Secrets included in the Bakkt IP.

(d) To the knowledge of Bakkt Opco, and except as would not be material to Bakkt Opco or any of its Subsidiaries (i) the conduct of the respective businesses of Bakkt Opco and its Subsidiaries does not currently infringe, misappropriate or violate, and has not since the Formation Date infringed, misappropriated or violated, any Intellectual Property of any other Person, and (ii) no Person is, or since the Formation Date has been, infringing, violating or misappropriating any Bakkt IP. Since the Formation Date, neither Bakkt Opco nor any of its Subsidiaries have received any written notice, offer to license or claim from any Person (x) challenging the validity of the Bakkt IP or ownership rights of Bakkt Opco or its Subsidiaries in the Bakkt IP, or (y) alleging that Bakkt Opco, its Subsidiaries, or the operation of their respective businesses infringe, misappropriate or otherwise violate the Intellectual Property of any third party. The representations and warranties in this Section 3.14(d) constitute the sole and exclusive representations and warranties of Bakkt Opco relating to the infringement, misappropriation or violation of any Intellectual Property of any Person.

(e) Except as would not be material to Bakkt Opco or any of its Subsidiaries, (i) neither Bakkt Opco nor any of its Subsidiaries distributes or otherwise uses any Public Software in a manner that would obligate Bakkt Opco or any of its Subsidiaries to disclose, license, make available or distribute any source code or other works of authorship or Trade Secrets that, in each

 

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case of the foregoing, constitute Bakkt IP as a condition of such distribution or use of such Public Software, and (ii) neither Bakkt Opco nor any of its Subsidiaries is subject to any obligation to deliver possession to any holder of an escrow of any source code or other works of authorship that, in each case of the foregoing, constitute Bakkt IP, nor has Bakkt Opco or its Subsidiaries delivered any such materials to any holder of an escrow.

(f) Except as would not be to be material to Bakkt Opco or any of its Subsidiaries, (i) all Persons (including employees, consultants and independent contractors of Bakkt Opco or any of its Subsidiaries) who were or are involved in the creation, development, design or modification of any Bakkt IP have entered into, with respect to Bakkt Opco or such Subsidiary, valid and binding written agreements expressly assigning to Bakkt Opco or such Subsidiary all of their right, title and interest in and to the same that does not initially vest in Bakkt Opco or its Subsidiaries by operation of law, and (ii) to the knowledge of Bakkt Opco, no third party owns Intellectual Property covering work that such Person has contributed to Bakkt Opco or any of its Subsidiaries.

Section 3.15 Data Privacy and IT Systems.

(a) To the knowledge of Bakkt Opco, the Software, computer hardware, firmware, networks, interfaces, Bakkt Software, and related systems used by Bakkt Opco or any of its Subsidiaries in connection with the operation of the business of Bakkt Opco or any of its Subsidiaries (collectively, “Computer Systems”), in the past three (3) years, have not suffered any material failure, crash, security incident or data breach that has had a material effect on the security of the Computer Systems or the information stored therein, or caused material disruption to the business or operations of Bakkt Opco or any of its Subsidiaries. Except as would not be material to Bakkt Opco or any of its Subsidiaries, Bakkt Opco and its Subsidiaries have implemented, and have used commercially reasonable efforts to ensure that their third party vendors who handle personal information or help facilitate transactions as part of the business and operation of Bakkt Opco implement, adequate policies and commercially reasonable security measures regarding the integrity, security, confidentiality and availability of the Computer Systems that Bakkt Opco and its Subsidiaries own or use and the information stored therein, such as providing for the back-up and recovery of material data and implementing disaster recovery plans and procedures.

(b) In connection with its collection, storage, transfer (including, without limitation, any transfer across national borders), processing, retention, safeguarding, security, disclosure, disposal, sale, and/or use of any personal information, business and proprietary information or Sensitive Data, Bakkt Opco and its Subsidiaries are in material compliance with (i) all applicable privacy, security and data protection Laws in all relevant jurisdictions, (ii) Bakkt Opco’s and any of its Subsidiaries’ current privacy policies and (iii) the requirements of any contract or codes of conduct to which Bakkt Opco or any of its Subsidiaries is a party or is subject, in each case, relating to privacy, security and data protection (collectively, the “Data Privacy Practices”). Since the Formation Date there have not been any Actions pending or, threatened in writing, or, to the knowledge of Bakkt Opco, threatened orally, against Bakkt Opco or any of its Subsidiaries arising out of Bakkt Opco’s or any of its Subsidiaries’ non-compliance with the Data Privacy Practices or any information security incidents affecting the Computer Systems.

 

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(c) Except as would not materially disrupt the business or operations of Bakkt Opco or any of its Subsidiaries, the Computer Systems owned and operated by Bakkt Opco or any of its Subsidiaries’, and, to Bakkt Opco’s knowledge, the Computer Systems owned or operated by third parties, do not contain any “time bomb,” “Trojan horse,” “back door,” “worm,” virus, bug, errors, malware, spyware, or other device or code intended to disable, disrupt or harm the Computer Systems.

(d) Since the Formation Date, to the knowledge of Bakkt Opco, there has not been any material unauthorized access, unauthorized processing, unauthorized acquisition, unauthorized disclosure or theft of Sensitive Data, personal information, and business or proprietary data from Bakkt Opco or any of its Subsidiaries, which occurred while such information or data was in the possession, custody or control of Bakkt Opco or any of its Subsidiaries or, to the knowledge of Bakkt Opco, their third party vendors, nor has Bakkt Opco or any of its Subsidiaries received any written or, to the knowledge of Bakkt Opco, oral notice of the material improper use or disclosure of, or a material breach in the security of, any such information or data, nor has Bakkt Opco or any of its Subsidiaries notified any person or entity in writing, or been required by applicable law, regulation, or Contract to notify any person or entity, of any security incident relating to personal data or information security. Bakkt Opco and each of its Subsidiaries is, and since the Formation Date has been, in material compliance with all applicable Contract requirements relating to privacy, personal data protection, data security, and the collection, processing and use of personal information and its own privacy policies and guidelines.

Section 3.16 Insurance.

(a) Section 3.16(a) of the Bakkt Disclosure Letter sets forth a correct and complete list (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) of each material insurance policy of Bakkt Opco and its Subsidiaries, which provide for coverage in such amounts as are prudent and customary in the businesses in which Bakkt Opco and its Subsidiaries are engaged. The material insurance policies of Bakkt Opco and its Subsidiaries satisfy all insurance-related requirements necessary for Bakkt Opco and its Subsidiaries to maintain in good standing all Licenses. Bakkt Opco has provided or made available to VIH summaries of all such insurance policies. With respect to each such material insurance policy, except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole: (a) such policy is legal, valid, binding and enforceable in accordance with its terms and is in full force and effect, (b) all premiums due and payable under all such insurance policy have been timely paid and (c) neither Bakkt Opco nor any of its Subsidiaries is in material violation, breach or default, and no event has occurred which, after notice or the lapse of time or both, would constitute a material violation, breach or default or permit termination, revocation or modification under such policy. Neither Bakkt Opco nor any of its Subsidiaries has any self-insurance or co-insurance programs.

(b) Section 3.16(b) of the Bakkt Disclosure Letter identifies each individual insurance claim in excess of $250,000 made by Bakkt Opco or any of its Subsidiaries since the Formation Date. No such claim has been denied by the applicable insurer and each of Bakkt Opco and its Subsidiaries has reported to its insurers all claims and pending circumstances that would result in a claim, in each case except where such failure to report such a claim has not had and would not be reasonably likely to have, individually or in the aggregate, a material adverse impact on Bakkt Opco and its Subsidiaries, taken as a whole.

 

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Section 3.17 Environmental Matters. Except as would not have a Material Adverse Effect: (a) Bakkt Opco and each of its Subsidiaries is in compliance with all applicable Environmental Laws, including obtaining, maintaining in good standing, and complying with all Permits required for its business and operations by Environmental Laws (“Environmental Permits”), (b) neither Bakkt Opco nor any of its Subsidiaries is the subject of any outstanding Order with any Governmental Authority in respect of any Environmental Laws, and (c) no Action is pending, or to Bakkt Opco’s knowledge, threatened against Bakkt Opco or any of its Subsidiaries alleging that Bakkt Opco or one of its Subsidiaries may be in violation of any Environmental Law or Environmental Permit.

Section 3.18 Brokers and Agents. Other than PJ Solomon, L.P., no broker or finder has acted for Bakkt Opco or any of its Subsidiaries in connection with this Agreement, the Transaction Documents or the Transactions, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such transactions based upon agreements, arrangements or understandings made by or on behalf of Bakkt Opco or any of its Subsidiaries.

Section 3.19 Transactions with Related Parties. Except (a) as set forth on Section 3.19 of the Bakkt Disclosure Letter, (b) as set forth in this Agreement or the Transaction Documents or (c) Contracts incident to employment by or service as a director or officer of Bakkt Opco or any of its Subsidiaries (including, for the avoidance of doubt, any Bakkt Benefit Plan or Bakkt Benefit Arrangement), neither Bakkt Opco nor any of its Affiliates, nor any executive officer or director of Bakkt Opco or any of its Affiliates, nor any immediate family member of any of the foregoing (or any of their respective Affiliates) is presently, or in the past two (2) years has been, a party to any transaction with Bakkt Opco, including any Contract or other arrangement (i) providing for the furnishing of services by, (ii) providing for the rental of Real Property or personal property from or (iii) otherwise requiring payments to any Related Party. Except as set forth on Section 3.19 of the Bakkt Disclosure Letter, no Related Party owns any Real Property or personal property, or right, tangible or intangible (including Intellectual Property), which is material to the business of Bakkt Opco or any of its Subsidiaries.

Section 3.20 Regulatory Matters.

(a) Neither Bakkt Opco from the Formation Date to the date hereof, its Subsidiaries in the last three (3) years to the date hereof, nor any of their respective Representatives acting on their behalf, in their capacity as such, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity or (ii) promised, offered, authorized, made or agreed to make any unlawful payment or promised, offered, authorized, provided or agreed to provide anything of value to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the FCPA or of any other applicable anti-bribery or anti-corruption Law. Neither Bakkt Opco, its Subsidiaries, nor any of their respective Representatives acting on their behalf, in their capacity as such, has promised, offered, authorized, given or agreed to give any unlawful gift, similar unlawful benefit or anything of value in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder Bakkt

 

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Opco or its Subsidiaries or assist in connection with any actual or proposed transaction, in violation of any provision of the FCPA or of any other applicable anti-bribery or anti-corruption Law. No Action with respect to any of the foregoing is pending or, to the knowledge of Bakkt Opco, threatened in writing against Bakkt Opco or its Subsidiaries.

(b) The operations of Bakkt Opco are and have been since the Formation Date, and the operations of each of its Subsidiaries are and have been since the later of (i) their respective formation dates, (ii) the date on which they were acquired by Bakkt Opco, and (iii) the date that is five (5) years prior to the date hereof, been conducted in compliance with anti-money laundering Laws in all applicable jurisdictions, including the maintenance of appropriate anti-money laundering programs pursuant to such Laws, and no material deficiencies in those programs have been identified, and no Action involving Bakkt Opco or any of its Subsidiaries with respect to any of the foregoing is pending or, to the knowledge of the Bakkt Opco, threatened in writing.

(c) Section 3.20(c) of the Bakkt Disclosure Letter sets forth, as of the date hereof, (i) each jurisdiction in which Bakkt Opco or any of its Subsidiaries holds any Licenses and (ii) each jurisdiction in which Bakkt Opco or any of its Subsidiaries has applications pending for any Licenses (“License Applications”). Except as would not be materially adverse to Bakkt Opco and its Subsidiaries, taken as a whole, the operations of Bakkt Opco are and have been since the Formation Date, and the operations of each of its Subsidiaries are and have been since the later of (i) their respective formation dates, (ii) the date on which they were acquired by Bakkt Opco, and (iii) the date that is five (5) years prior to the date hereof, conducted in all material respects in compliance with all Licenses necessary to conduct its business (“Material Licenses”). All Material Licenses are in full force and effect, and since the Formation Date to the date hereof, neither Bakkt Opco nor any of its Subsidiaries has received written, or to the knowledge of Bakkt Opco, oral notice or communications from any Governmental Authority regarding: (i) any violation of or failure to comply with any term or requirement of any Material License or (ii) any revocation, withdrawal, suspension, cancellation, termination or modification of any Material License. Since the Formation Date to the date hereof, neither Bakkt Opco nor any of its Subsidiaries has withdrawn any material License Application.

(d) Neither Bakkt Opco, its Subsidiaries nor any of their respective directors or officers, or, to the knowledge of Bakkt Opco, any other Representative acting on behalf of Bakkt Opco or its Subsidiaries, is currently identified on the Specially Designated Nationals and Blocked Persons List (“SDN List”) or other sanctions-related persons list, owned or controlled by such a person, otherwise the target of sanctions administered by the U.S. Government, including the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), the U.S. Department of State, or any other relevant sanctions authorities (collectively, “Sanctions”), or operating, organized, or resident in a country or territory that is the target of U.S. sanctions (currently, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine), and Bakkt Opco has not since its Formation Date, directly or, to its knowledge indirectly, loaned, contributed or otherwise made available funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any country or territory that is the target of Sanctions or for the purpose of financing the activities of any Person that is the target of Sanctions, or has otherwise been in violation of Sanctions.

 

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(e) Neither Bakkt Opco or any of its Subsidiaries is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, in each case within the meaning of the Investment Company Act of 1940, as amended. Each holder of Bakkt Interests is an “accredited investor”, as such term is defined in Rule 501(a) under the Securities Act.

Section 3.21 Board Recommendation. The Board of Managers of Bakkt Opco has, as of the date of this Agreement, unanimously determined that (i) the consummation of the Transactions (including the Merger) is in the best interest of Bakkt Opco and the Bakkt Equity Holders, and (ii) recommended that Bakkt Equity Holders adopt and approve this Agreement, the other Transaction Documents, the Merger and the other Transactions.

Section 3.22 No Other VIH or Merger Sub Representations or Warranties. Bakkt Opco acknowledges and agrees that the specific representations and warranties expressly set forth in Article IV (as qualified by the VIH Disclosure Letter) or expressly set forth in a Transaction Document (collectively, the “VIH Representations”), (a) are and shall constitute the sole and exclusive representations and warranties made by VIH, Merger Sub and their respective Representatives in connection with this Agreement or the Transactions, (b) none of VIH, Merger Sub nor any of their respective Representatives makes any other representation or warranty, either written or oral, express or implied, statutory or otherwise, of any nature, at law or in equity, including with respect to any express or implied representation or warranty as to the merchantability, quality, quantity, suitability or fitness for any particular purpose of VIH or Merger Sub, or any of their respective businesses, financial projections, assets, liabilities or operations, or the Transactions, and (c) each of VIH and Merger Sub disclaims any other representations or warranties, whether made by VIH or Merger Sub or any of their respective Representatives. Bakkt Opco acknowledges and agrees that except for the VIH Representations, Bakkt Opco (a) shall consummate the Transactions without any representation or warranty, except as otherwise expressly set forth in the VIH Representations, as to merchantability or fitness for any particular purpose, in an “as is” condition and on a “where is” basis and “with all faults”, (b) in entering in this Agreement and the other Transaction Documents is not relying upon any representations and warranties in connection with the Transactions other than the VIH Representations and (c) expressly disclaims reliance upon any representations and warranties other than the VIH Representations. Without limiting the foregoing, VIH and Merger Sub do not make any representation or warranty of any kind whatsoever, express or implied, written or oral, at law or in equity, to Bakkt Opco or its Representatives regarding the success, profitability or value of VIH or Merger Sub.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF VIH AND MERGER SUB

Each of VIH and Merger Sub make the following representations and warranties to Bakkt Opco as of the date of this Agreement and as of the Closing, except as disclosed by VIH in (i) the written VIH Disclosure Letter provided to Bakkt Opco (the “VIH Disclosure Letter”), which shall be arranged in sections and subsections corresponding to the numbered and lettered sections and subsections contained in this Article IV, and (ii) the SEC Reports that were available at least one (1) Business Day prior to the date hereof on the SEC’s website through EDGAR (other than

 

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disclosures in the “Risk Factors” or “Cautionary Note Regarding Forward-Looking Statements” sections of such reports and other disclosures that are generally cautionary, predictive or forward-looking in nature). The disclosure in any section or subsection of the VIH Disclosure Letter corresponding to any section or subsection of this Article IV shall qualify other sections and subsections in this Article IV so long as its relevance to such other section or subsection of this Article IV is reasonably clear on the face of the information disclosed therein.

Section 4.1 Due Organization. VIH is a Cayman Islands exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. VIH has full corporate power and authority necessary to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. Section 4.1 of the VIH Disclosure Letter lists for each of VIH and Merger Sub all jurisdictions in which it is qualified to conduct business and all names other than its legal name under which it does business. Each of VIH and Merger Sub are not in violation of any provision of their respective Organizational Documents in any material respect.

Section 4.2 Authorization; No Conflict.

(a) Each of VIH and Merger Sub have full corporate and limited liability company, respectively, power and, upon receipt of the VIH Shareholders’ Approval, authority to enter into this Agreement and the Transaction Documents to which it is a party, to carry out its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery by each of VIH and Merger Sub of this Agreement and the Transaction Documents to which it is a party, the performance by each of VIH and Merger Sub of its obligations hereunder and thereunder and the consummation by each of VIH and Merger Sub of the Transactions have been duly and validly authorized by all requisite corporate and limited liability company action on the part of each of VIH and Merger Sub, subject only to the receipt of the VIH Shareholders’ Approval. This Agreement has been duly and validly executed and delivered by each of VIH and Merger Sub, and (assuming due authorization, execution and delivery by any other applicable parties thereto) constitutes, or upon such delivery constitutes, a legal, valid and binding obligation of each of VIH and Merger Sub enforceable against each of VIH and Merger Sub in accordance with its terms, subject to the Enforcement Exceptions.

(b) Assuming the VIH Shareholders’ Approval is obtained and the effectiveness of the Domestication, and except for any required Regulatory Filings, the execution, delivery and performance of this Agreement and the Transaction Documents by VIH and Merger Sub and the consummation of the Transactions, do not and will not, with or without notice, lapse of time or both: (i) conflict with or result in a breach or violation of the Organizational Documents of VIH or Merger Sub; (ii) except for applicable requirements, if any, of the Securities Act, the Exchange Act, and state securities laws, require any consent, waiver, approval, declaration or authorization of, or notice to or filing with, any Governmental Authority; or (iii) violate, conflict with, result in a breach or default under (with notice or lapse of time or both), result in, or give any Person a right of, termination, cancellation, acceleration, suspension, modification or revocation under, give rise to any obligation to make payments or provide compensation under, result in the creation of any Lien upon any of the properties or assets of VIH under, give any Person the right to exercise any remedy, claim a rebate, chargeback or penalty, accelerate the maturity or performance under, or require any consent, waiver, approval, notice, filing, declaration or authorization under, any Material VIH Contract, except, with respect to the foregoing clauses (ii) and (iii), as would not have a VIH Material Adverse Effect.

 

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Section 4.3 Capitalization.

(a) As of the date of this Agreement (and, prior to giving effect to the consummation of the transactions contemplated by the Redemption, as of the Closing), the authorized capital stock of VIH consists of 200,000,000 Class A ordinary shares (“VIH Class A Shares”), of which 20,737,202 are outstanding, 20,000,000 Class B ordinary shares (“VIH Class B Shares” and, together with the VIH Class A Shares, the “VIH Ordinary Shares”), of which 5,184,300 are outstanding, and 1,000,000 preference shares (“VIH Preference Shares”), none of which are outstanding. All outstanding VIH Ordinary Shares have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of (or subject to) any preemptive rights (including any preemptive rights set forth in the Organizational Documents of VIH), rights of first refusal or similar rights. As of the date hereof (and, as of the Closing), VIH has 16,516,041 warrants (“VIH Warrants”) outstanding, each such VIH Warrant entitling the holder thereof to purchase one (1) VIH Class A Share. Other than the VIH Warrants, there are no options, warrants, rights, commitments or agreements obligating VIH to issue, exchange, transfer, deliver or sell additional Equity Interests of VIH. As a result of the consummation of the Transactions, except as expressly contemplated by this Agreement, the Transaction Documents, the Organizational Documents of VIH, or the PIPE Financing, no other Equity Interests of VIH are issuable.

(b) All of the outstanding securities of VIH have been granted, offered, sold and issued in material compliance with all applicable securities Laws. Except for the VIH Public Warrants, the VIH Warrants issued to the VIH Sponsor and the VIH Class B Shares (subject to the transactions contemplated by Section 2.2), there are no outstanding contractual obligations of VIH to repurchase, redeem or otherwise acquire any Equity Interests of VIH.

(c) Other than its ownership of Merger Sub, VIH does not own any Equity Interest in any Person. Other than in connection with the Redemption, there are no outstanding contractual obligations of VIH to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

(d) The outstanding Equity Interests of Merger Sub consists solely of limited liability company interests owned by VIH. All outstanding limited liability company interests of Merger Sub are owned by VIH, have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of (or subject to) any preemptive rights There are no options, warrants, equity securities, calls, rights, commitments or agreements by which Merger Sub is bound obligating Merger Sub to issue, exchange, transfer, deliver or sell Equity Interests of Merger Sub. As a result of the consummation of the Transactions, except as expressly contemplated by this Agreement and the Transaction Documents, no Equity Interests of Merger Sub are issuable.

(e) All of the outstanding securities of Merger Sub have been granted, offered, sold and issued in material compliance with all applicable securities Laws.

 

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(f) Merger Sub owns no capital stock, securities convertible into capital stock or any other Equity Interest in any Person. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.

Section 4.4 Merger Sub.

(a) Merger Sub is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware.

(b) Merger Sub was formed for the purpose of engaging in the Transactions, and Merger Sub has not engaged in any other business or activities.

(c) At the Effective Time, Merger Sub will not have any assets, liabilities or obligations of any nature or any tax attributes other than (i) those set forth under its Organizational Documents (including its costs of formation), and (ii) pursuant to this Agreement, the Transaction Documents, and the Transactions.

Section 4.5 Special Purpose Acquisition Company; Absence of Changes. Since the date of its formation, (a) except for any actions expressly contemplated or permitted by this Agreement (including under Section 5.2), the Transaction Documents, the Transactions, or the PIPE Financing, VIH has conducted no business other than the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination, and (b) there has not been any VIH Material Adverse Effect.

Section 4.6 Taxes.

(a) VIH is, and at all times since its formation has been, classified as a corporation for all U.S. federal income tax purposes and will be so classified for all periods through and including the Closing Date.

(b) Each of VIH and Merger Sub has timely filed (taking into account applicable extensions) all material Tax Returns that it was required to file and such Tax Returns are correct and complete in all material respects. Neither VIH nor Merger Sub is currently the beneficiary of any extension of time within which to file any material Tax Return other than extensions of time to file Tax Returns obtained in the ordinary course of business.

(c) All material Taxes and all material Tax liabilities of VIH and Merger Sub that are due and payable have been timely paid in full to the appropriate taxing authorities. Any such Taxes or Tax liabilities that relate to a Pre-Closing Tax Period that are not yet due and payable (i) for periods covered by the VIH Financials have been properly accrued and adequately disclosed on the VIH Financials in accordance with GAAP, and (ii) for periods not covered by the VIH Financials have been properly accrued on the books and records of VIH and Merger Sub in accordance with GAAP.

(d) Each of VIH and Merger Sub has withheld or collected all material Taxes required by Law to have been withheld or collected and, to the extent required, timely paid over such Taxes to the appropriate Governmental Authorities.

 

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(e) Neither VIH nor Merger Sub is currently, nor has been within the past three (3) years, the subject of any material Tax Proceeding by any Governmental Authority and no such Tax Proceeding is pending or, to the knowledge of VIH or Merger Sub, threatened or contemplated.

(f) Neither VIH nor Merger Sub has waived any statute of limitations with respect to material Taxes or agreed to extend the period for assessment or collection of any material Taxes, which waiver or extension is still in effect. Neither VIH nor Merger Sub is presently contesting a material Tax liability of VIH or Merger Sub, as applicable, before any taxing authority or other Governmental Authority.

(g) There are no Liens for Taxes upon the assets of VIH or Merger Sub other than Permitted Liens

(h) No written claim has been made within the past three (3) years by any taxing authority in a jurisdiction where VIH or Merger Sub does not file Tax Returns that VIH or Merger Sub, as applicable, is or may be subject to material taxation by that jurisdiction.

(i) Neither VIH nor Merger Sub will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) ending after the Closing Date as a result of any of the following that occurred or exists on or prior to the Closing Date: (i) a “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); (ii) an installment sale or open transaction; (iii) any prepaid amounts or deferred revenue realized, accrued or received, in each case, outside the ordinary course of business; or (iv) a change in the accounting method of VIH or Merger Sub pursuant to Section 481 of the Code or any similar provision of the Code or the corresponding Tax Laws of any nation, state or locality.

(j) Neither VIH nor Merger Sub has any Liabilities for material Taxes of any other Person (other than VIH or Merger Sub) as a successor or transferee, by Contract, by operation of Law, or otherwise (other than pursuant to any Commercial Tax Agreement). Neither VIH nor Merger Sub is party to or bound by any Tax Sharing Agreement.

(k) Neither VIH nor Merger Sub has engaged in a “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b).

Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 4.6 and Section 4.4(c) are the only representations and warranties of VIH and Merger Sub with respect to Tax matters.

Section 4.7 Brokers and Agents. Other than Jefferies LLC and, solely to the extent related to the PIPE Financing, Citigroup Global Markets Inc., no broker or finder has acted for VIH or Merger Sub in connection with this Agreement, the Transaction Documents, the Transactions, including the PIPE Financing, or VIH’s initial public offering, and no broker or finder is entitled to any brokerage or finder’s fee or other commissions in respect of such transactions based upon agreements, arrangements or understandings made by or on behalf of VIH, Merger Sub or VIH Sponsor.

 

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Section 4.8 Financing. Each of VIH and Merger Sub represents that it is not a condition to the Closing or to any of its other obligations under this Agreement that VIH or Merger Sub obtain financing for or related to any of the Transactions except as expressly contemplated herein.

Section 4.9 Legal Proceedings. There is no Action pending, threatened in writing or, to the knowledge of VIH, otherwise threatened against VIH or Merger Sub (and no Action has been brought or, to VIH’s knowledge, threatened since the date of VIH’s formation), and no notice of any Action involving or relating to VIH or Merger Sub, whether pending or threatened, has been received by VIH or Merger Sub, in each case to the extent such Action would have a VIH Material Adverse Effect. There are no Orders pending now or rendered by a Governmental Authority since the date of VIH’s formation against VIH or Merger Sub that would have a VIH Material Adverse Effect.

Section 4.10 Compliance; Permits. VIH and Merger Sub are, and since the date of such their respective dates of formation have been, conducting its business and operations, and otherwise is, and has since their respective dates of formation has been, in compliance in all material respects with all applicable Laws and Permits reasonably necessary to lawfully conduct the business of VIH and Merger Sub. Since their formation, neither VIH nor Merger Sub has received any written communication from any Governmental Authority alleging noncompliance in any material respect with any applicable Law or Permit.

Section 4.11 SEC Filings and VIH Financials.

(a) Since the IPO, VIH has timely filed all forms, reports, registration statements, prospectuses and other documents required to be filed or furnished by VIH with the SEC under the Securities Act and/or the Exchange Act, together with any amendments, restatements or supplements thereto. Except to the extent available on the SEC’s website through EDGAR, VIH has delivered to Bakkt Opco copies in the form filed with the SEC of (i) all forms, reports, registration statements, prospectuses and other documents (other than preliminary materials) filed by VIH with the SEC (the forms, reports, registration statements, prospectuses and other documents referred to above, whether or not available through EDGAR, collectively, the “SEC Reports”) and (ii) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of SOX) with respect to any report referred to in clause (i) above (collectively, the “Public Certifications”). The SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the SEC staff with respect to VIH or the SEC Reports. As of the date hereof to the knowledge of VIH, (i) none of the SEC Reports is the subject of ongoing SEC review or outstanding SEC comments and (ii) neither the SEC nor any other Governmental Authority is conducting any investigation or review of any SEC Report. The Public Certifications are each true as of their respective dates of filing. As used in this Section 4.11, the term “file” shall be broadly construed to include any manner permitted by SEC rules and regulations in which a document or information is furnished, supplied or otherwise made available to the SEC.

 

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(b) The financial statements and notes of VIH contained or incorporated by reference in the SEC Reports (the “VIH Financials”), fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and cash flows of VIH at the respective dates of and, for the periods referred to in such financial statements, all in accordance with (i) GAAP methodologies applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).

(c) VIH 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 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by Rules 13a-15 and 15d-15 under the Exchange Act. VIH’s disclosure controls and procedures are designed to ensure that all information (both financial and non-financial) required to be disclosed by VIH in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to VIH’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act. To the knowledge of VIH, (i) VIH has not identified or been made aware of any significant deficiencies or material weaknesses in the design or operation of its internal control over financial reporting that would adversely affect VIH’s ability to record, process, summarize and report financial information and (ii) VIH does not have knowledge of any fraud, whether or not material, that involves management or other employees who have a significant role in VIH’s internal control over financial reporting.

(d) Except as and to the extent reflected or reserved against in the VIH Financials, VIH has not incurred any Liabilities or obligations of the type required to be reflected on a balance sheet in accordance with GAAP that are not adequately reflected or reserved on or provided for in the VIH Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance with GAAP that have been incurred since VIH’s formation in the ordinary course of business.

(e) There are no outstanding loans or other extensions of credit made by VIH to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of VIH other than advancements of expenses in the ordinary course less than $50,000 individually or $100,000 in the aggregate. VIH has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

 

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Section 4.12 National Stock Exchange. As of the date of this Agreement, the VIH Public Units, the VIH Class A Shares and the VIH Warrants that were included as part of the VIH Public Units (the “VIH Public Warrants”) are listed on the National Stock Exchange under the symbols “VIHAU”, “VIH” and “VIHAW”, respectively. As of the date of this Agreement, VIH is in compliance in all material respects with the applicable corporate governance requirements of the National Stock Exchange for continued listing of VIH Public Units, VIH Class A Shares and VIH Public Warrants thereon and there is no action or proceeding pending or, to VIH’s knowledge, threatened against VIH by the National Stock Exchange or the Financial Industry Regulatory Authority to prohibit or terminate the listing of the VIH Public Units, VIH Class A Shares or VIH Public Warrants on the National Stock Exchange.

Section 4.13 Board Recommendation. Each of the VIH Board (including any required committee or subgroup of the VIH Board) and the managing member of Merger Sub has, as of the date of this Agreement, unanimously determined that (i) the consummation of the Transactions (including the Merger and the Domestication) is in the best interest of the stockholders of VIH and the equity holders of Merger Sub, (ii) the fair market value of Bakkt Opco is equal to at least eighty percent (80%) of the balance in the Trust Account and (iii) in the case of VIH, recommended that VIH Shareholders adopt and approve this Agreement and approve the other Voting Matters.

Section 4.14 Trust Account. VIH has made available to Bakkt Opco a true, correct and complete copy of the fully executed Investment Management Trust Agreement (the “Trust Agreement”), dated as of September 22, 2020, by and between VIH and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”). As of the date of this Agreement, VIH has at least $207,373,020 in the Trust Account, with such funds invested in government securities or money market funds meeting certain conditions pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of VIH and, to VIH’s knowledge, the Trustee, enforceable in accordance with its terms, subject to the Enforcement Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended or supplemented or modified, in any respect, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters and there are no agreements, Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the SEC Reports to be inaccurate or (ii) entitle any Person (other than (A) the underwriter of the IPO and (B) Public Stockholders who have elected to redeem their VIH Class A Shares in accordance with the VIH Memorandum and Articles) 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 to redeem VIH Class A Shares from Public Stockholders in accordance with the provisions of the VIH Memorandum and Articles and the IPO Prospectus (the “Redemption”) or as otherwise described in Section 9.2(a). There is no Action pending, or to VIH’s knowledge, threatened with respect to the Trust Account.

Section 4.15 Insurance. Except for directors’ and officers’ liability insurance, VIH does not maintain any insurance policies.

Section 4.16 Intellectual Property. Neither VIH nor Merger Sub owns, licenses or otherwise has any right, title or interest in any Intellectual Property. To the knowledge of VIH, neither VIH nor Merger Sub infringes, misappropriates or violates any Intellectual Property of any other Person.

 

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Section 4.17 Agreements, Contracts and Commitments.

(a) Other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents (none of which shall constitute Material VIH Contracts for purposes of this Agreement), there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including outstanding offers or proposals) of any kind, whether written or oral, to which VIH or Merger Sub is a party or by or to which any of the properties or assets of VIH or Merger Sub may be bound, subject or affected (“Material VIH Contracts”). All Material VIH Contracts are listed in Section 4.17(a) of the VIH Disclosure Letter other than those that are exhibits to the SEC Reports filed at least one (1) Business Day prior to the date of this Agreement.

(b) Each Material VIH Contract was entered into at arm’s length and in the ordinary course, is in full force and effect and, to VIH’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions. To VIH’s knowledge, no other party to a Material VIH Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material VIH Contracts (or written summaries in the case of oral Material VIH Contracts) have been heretofore delivered to Bakkt Opco.

(c) Neither VIH nor, to the knowledge of VIH, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material VIH Contract.

Section 4.18 Title to Property. Neither VIH nor Merger Sub owns or leases any Real Property or personal property. There are no options or other Contracts under which VIH or Merger Sub has a right or obligation to acquire or lease any interest in Real Property or personal property.

Section 4.19 Employee Matters. Other than any former officers or as described in VIH’s SEC Reports, VIH has never had any employees. Other than reimbursement of any out-of-pocket expenses incurred by VIH’s officers and directors in connection with activities on VIH’s behalf in an aggregate amount not in excess of the amount of cash held by VIH outside of the Trust Account, VIH does not have any unsatisfied liability with respect to any employee, officer or director. VIH does not maintain, sponsor or have any liability or potential liability with respect to any VIH Benefit Arrangement or VIH Benefit Plan. Neither the execution and delivery of this Agreement nor the consummation of the Transactions contemplated hereunder (either alone or upon the occurrence of any additional or subsequent events or the passage of time) will (i) cause any compensatory payment or benefit, including any retention, bonus, fee, distribution, remuneration, or other compensation payable to any Person who is or has been an employee of or independent contractor to VIH (other than salaries, wages, or bonuses payable in the ordinary course of business) to increase or become due to any such Person or (ii) result in forgiveness of indebtedness with respect to any employee of VIH.

 

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Section 4.20 Regulatory Matters.

(a) Neither VIH, its Subsidiaries, nor to the knowledge of VIH has any of their respective Representatives acting on their behalf, in their capacity as such, has since their respective dates of formation (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity or (ii) promised, offered, authorized, made or agreed to make any unlawful payment or promised, offered, authorized, provided or agreed to provide anything of value to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the FCPA or of any other applicable anti-bribery or anti-corruption Law. Neither VIH, its Subsidiaries, nor any of their respective Representatives acting on their behalf, in their capacity as such, has promised, offered, authorized, given or agreed to give any unlawful gift, similar unlawful benefit or anything of value to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder VIH or its Subsidiaries or assist in connection with any actual or proposed transaction, in violation of any provision of the FCPA or of any other applicable anti-bribery or anti-corruption law. To the knowledge of VIH, no Action with respect to any of the foregoing is pending or threatened against or that involves VIH or its Subsidiaries.

(b) The operations of VIH and its Subsidiaries are and have since their respective dates of formation been conducted in compliance with anti-money laundering Laws, and no Action involving VIH or any of its Subsidiaries with respect to any of the foregoing is pending or, to the knowledge of the VIH, threatened in writing.

(c) Neither VIH, its Subsidiaries nor any of their respective directors or officers, or, to the knowledge of VIH, any other Representative acting on behalf of VIH or its Subsidiaries is currently identified on the SDN List or other sanctions-related list, or owned or controlled by such a person, or otherwise the target of Sanctions, or operating, organized, or resident in a country or territory that is the target of Sanctions (currently, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine), and VIH has not since the date of its formation, directly or, to its knowledge indirectly, loaned, contributed or otherwise made available funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any country or territory which is the target of Sanctions or for the purpose of financing the activities of any Person that is the target of Sanctions, or has otherwise been in violation of Sanctions.

Section 4.21 Investment Company Act. VIH is not required to register as an “investment company” under (and within the meaning of) the Investment Company Act of 1940, as amended.

Section 4.22 PIPE Financing.

(a) VIH has delivered to Bakkt Opco true, correct and complete copies of each of the PIPE Subscription Agreements entered into by VIH with the applicable PIPE Investors named therein, pursuant to which the PIPE Investors have committed to provide the PIPE Financing. To the knowledge of VIH, with respect to each PIPE Investor, the PIPE Subscription Agreement with such PIPE Investor is in full force and effect and has not been withdrawn or terminated, or otherwise amended, modified or waived, in any material respect (it being understood that a change of or to one or more entities or individuals with respect to an PIPE Investor shall not be deemed a violation of the foregoing), and no withdrawal, termination, amendment or modification is contemplated by VIH. Each PIPE Subscription Agreement is a legal, valid and binding obligation of VIH, each PIPE Investor, and neither the execution or delivery by any party thereto nor the performance of any party’s obligations under any such PIPE Subscription Agreement violates any Laws. There are no other agreements, side letters, or arrangements

 

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between VIH and any PIPE Investor relating to any PIPE Subscription Agreement, that would affect the obligation of such PIPE Investors to contribute to Bakkt Opco the applicable portion of the PIPE Financing set forth in the PIPE Subscription Agreement of such PIPE Investor, and, as of the date hereof, VIH does not know of any facts or circumstances that would result in any of the conditions set forth in any PIPE Subscription Agreement not being satisfied, or the PIPE Financing not being available to VIH, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of VIH under any material term or condition of any PIPE Subscription Agreement and, as of the date hereof, VIH 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.

(b) No fees, consideration or other discounts are payable or have been agreed by VIH or any of its Subsidiaries (including, from and after the Closing, Bakkt Opco and its Subsidiaries) to any PIPE Investor in respect of its portion of the PIPE Financing.

Section 4.23 Due Diligence Investigation. VIH and Merger Sub acknowledge, covenant and agree, on behalf of themselves and their respective Representatives: (a) that they have made their own due diligence investigation, and based thereon, formed their own independent judgment with respect business, results of operations, prospects, condition (financial or otherwise) of assets of Bakkt Opco and its Subsidiaries and have been afforded satisfactory access to the books and records, facilities and personnel of Bakkt Opco and its Subsidiaries for the purpose of conducting such investigation and forming such judgement, (b) that in entering into this Agreement, they have relied solely upon their own investigation and analysis and the Bakkt Representations, (c) that (x) other than the Bakkt Representations, no representation or warranty has been or is being made by Bakkt Opco or any of its Representatives or any other Person as to the accuracy or completeness of any of the information provided or made available to VIH, Merger Sub or any of their respective Representatives (including any such information contained in the “data room”, in any confidential information memorandum, management presentation or similar materials, in answers to due diligence questions submitted by VIH, Merger Sub or any of their respective Representatives or in any other form (including meetings, calls and correspondence)) in expectation of the Transactions, and (y) there are uncertainties inherent in attempting to make estimates, projections, forecasts, plans, budgets and similar materials and information (including forward-looking statements), and VIH and Merger Sub are familiar with such uncertainties and (d) VIH and Merger Sub are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates, projections, plans and budgets so furnished to them, including the reasonableness of the assumptions underlying such estimates, projections, plans and budgets. Without limiting the foregoing provisions of this paragraph, VIH and Merger Sub hereby acknowledge and agree (on behalf of themselves and their respective Representatives) that none of Bakkt Opco, its Affiliates, their respective Representatives or any other Person is making any representation or warranty with respect to such estimates, projections, plans or budgets, including the reasonableness of the assumptions underlying such estimates, projections, plans or budgets, and that VIH, Merger Sub and their Representatives have not relied on any such estimates, projections, plans or budgets.

 

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Section 4.24 No Other Bakkt Opco Representations or Warranties. VIH and Merger Sub acknowledge and agree that the specific representations and warranties expressly set forth in Article III (as expressly qualified by the Bakkt Disclosure Letter) or expressly set forth in a Transaction Document (collectively, the “Bakkt Representations”), (a) are and shall constitute the sole and exclusive representations and warranties made by Bakkt Opco and its Representatives in connection with this Agreement or the Transactions, (b) neither Bakkt Opco nor any of its Representatives makes any other representation or warranty, either written or oral, express or implied, statutory or otherwise, of any nature, at law or in equity, including with respect to any express or implied representation or warranty as to the merchantability, quality, quantity, suitability or fitness for any particular purpose of Bakkt Opco, or any of its businesses, financial projections, assets, liabilities or operations, or the Transactions, and (c) Bakkt Opco disclaims any other representations or warranties, whether made by Bakkt Opco or any of its Representatives. VIH and Merger Sub acknowledge and agree that except for the Bakkt Representations, VIH and Merger Sub (a) shall consummate the Transactions without any representation or warranty, except as otherwise expressly set forth in the Bakkt Representations, as to merchantability or fitness for any particular purpose, in an “as is” condition and on a “where is” basis and “with all faults”, (b) in entering in this Agreement and the other Transaction Documents is not relying upon any representations and warranties in connection with the Transactions other than the Bakkt Representations and (c) expressly disclaims reliance upon any representations and warranties other than the Bakkt Representations, including any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to VIH, Merger Sub or any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided to VIH, Merger Sub or any of their respective Representatives) by any Representative of Bakkt Opco or one of its Affiliates or any information, documents or materials made available to VIH, Merger Sub or any of their respective Representatives, whether orally or in writing, in certain “data rooms,” management presentations, functional “break-out” discussions, responses to questions submitted on behalf of VIH, Merger Sub or any of their respective Representatives or in any other form in connection with the transactions contemplated by this Agreement. Without limiting the foregoing, Bakkt Opco not make any representation or warranty of any kind whatsoever, express or implied, written or oral, at law or in equity, to VIH, Merger Sub or any of their respective Representatives regarding the success, profitability or value of Bakkt Opco.

ARTICLE V

PRE-CLOSING COVENANTS

Section 5.1 Conduct of Business of Bakkt Opco. Except as set forth in Section 5.1 of the Bakkt Disclosure Letter, as otherwise contemplated by this Agreement, as required by applicable Law or a Governmental Authority, or as consented to by VIH (which consent, other than in respect of the sub-clauses listed in the last paragraph of this Section 5.1, shall not be unreasonably withheld, conditioned or delayed), between the date of this Agreement and the earlier of the Closing or the termination of this Agreement in accordance with Section 8.1 hereof (the “Interim Period”), Bakkt Opco shall, and shall cause its Subsidiaries to, (x) conduct their respective businesses in the ordinary course of business and in material compliance with applicable Law, and (y) in each case in all material respects, use their commercially reasonable efforts to maintain and preserve their respective businesses, assets and organizations intact, retain their respective present officers and employees and maintain and preserve their respective relationships with their officers and employees, suppliers, vendors, licensors, Governmental Authorities,

 

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creditors and others having business relations with such Person. Except as set forth in Section 5.1 of the Bakkt Disclosure Letter, as otherwise contemplated by this Agreement, as required by applicable Law or a Governmental Authority, or as consented to by VIH (which consent shall not be unreasonably withheld, conditioned or delayed), Bakkt Opco shall not and shall cause its Subsidiaries not to:

(a) change or amend any of the Organizational Documents of Bakkt Opco and its Subsidiaries, or authorize or propose the same;

(b) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of any securities (including any debt securities and including any options, warrants, calls, conversion rights, commitments or other securities convertible into or otherwise relating to such securities) or authorize or propose any change in its equity capitalization or capital structure, or enter into any agreement, understanding or arrangement with respect to the voting of equity securities of Bakkt Opco (provided, however, that exercises or conversions of currently outstanding rights shall not be prohibited), or grant any additional equity or equity-based compensation (including Bakkt Opco Incentive Units and Participation Units under the Bakkt Equity Incentive Plan);

(c) declare or pay any distribution (other than ordinary and regular tax distributions or distributions made by wholly-owned Subsidiaries of Bakkt Opco to Bakkt Opco or any of its wholly-owned Subsidiaries) in respect of its limited liability company interests or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any of its securities or purchase, redeem or otherwise acquire or retire for value any of its securities;

(d) make a loan or advance to or investment in any third party;

(e) sell, assign, lease, sublease, exclusively license, exclusively sublicense, pledge, fail to renew, or otherwise transfer or dispose of or grant any option or exclusive rights in, to or under, any material assets (including material Intellectual Property) of Bakkt Opco and its Subsidiaries (other than any such actions performed by Bakkt Opco or one of its Subsidiaries in the ordinary course of business);

(f) disclose any material Trade Secrets, material Bakkt Software or material confidential Intellectual Property of Bakkt Opco and its Subsidiaries (including the source code for any proprietary software) to any Person who has not entered into a reasonably protective confidentiality agreement;

(g) acquire (whether by merger, consolidation, acquisition of stock or assets or any other form of business combination) any non-natural Person or business or initiate the start-up of any new business, non-wholly-owned Subsidiary or joint venture or otherwise acquire any securities or material assets;

(h) incur, create, assume, guarantee or otherwise become liable for any indebtedness (directly, contingently or otherwise) except for (i) advances of any kind under any credit facilities or other debt instrument (including under any applicable credit line) of Bakkt Opco existing as of the date hereof not to exceed $1,000,000, (ii) any such indebtedness among Bakkt Opco and its wholly-owned Subsidiaries or among Bakkt Opco’s wholly-owned Subsidiaries, (iii) guarantees by Bakkt Opco of existing indebtedness of Subsidiaries of Bakkt Opco, and (iv) the accrual of interest on indebtedness outstanding as of the date of this Agreement or incurred in compliance with this Section 5.1(h);

 

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(i) withdraw any License Application except in accordance with Section 5.7;

(j) enter into any Material Contract or amend, modify, terminate or waive any material right under any Material Contract or any Material Permit (other than in the ordinary course of business);

(k) other than matters arising in the ordinary course of business or with a value of less than $250,000, commence a material lawsuit or settle, compromise, release or waive its rights under any claim or litigation, other than for routine collection and settlement matters of accounts payable;

(l) enter into, amend or terminate (other than terminations in accordance with their terms) any Contract or transaction with any Related Party, or waive any material right in connection therewith;

(m) announce, implement or effect any reduction in force, mass lay off, early retirement program, severance program, or other program or effort concerning the termination of more than 10 employees, including, but not limited to, any reduction in force, mass lay off, early retirement program, severance program or other program or effort concerning the termination of employees, in each case which would trigger any liability or advance notice requirements under the Workers Adjustment Retraining and Notification Act of 1988, as amended, or any similar state, local or foreign law or regulation;

(n) except as otherwise required by Law, existing Bakkt Benefit Plans or Bakkt Benefit Arrangements listed on Section 3.9(a) of the Bakkt Disclosure Letter or as would not be material to Bakkt Opco or its Subsidiaries taken as a whole, and only with respect to officers of Bakkt Opco, (i) grant any severance, retention, change in control or termination or similar pay, (ii) terminate, adopt, enter into or materially amend or grant any new awards under any Bakkt Benefit Plan or Bakkt Benefit Arrangement (including the Bakkt Equity Incentive Plan) or any plan, policy, practice, program, agreement or other arrangement that would be deemed a Bakkt Benefit Plan or Bakkt Benefit Arrangement as of the date hereof, (iii) materially increase the cash compensation or bonus opportunity, except in the ordinary course of business consistent with past practice, (iv) take any action to amend or waive any performance or vesting criteria or to accelerate the payment or vesting of any compensation or benefit payable by Bakkt Opco or any of its Subsidiaries, (v) hire or engage any new officer of Bakkt Opco, or (vi) terminate the employment or engagement, other than for cause, death or disability, of any officer of Bakkt Opco;

(o) enter into or extend any collective bargaining agreement or similar labor agreement, other than as required by applicable Law, or recognize any labor union, labor organization, or group of employees of Bakkt Opco or its Subsidiaries as the bargaining representative for any employees of Bakkt Opco or its Subsidiaries;

(p) revalue any of its material assets or make any change in accounting methods, principles or practices (including cash management practices), except to the extent required to comply with GAAP or to upgrade its practices to those suitable for a public company or as may be necessary in order to give effect to de-consolidation from the parent company of the Majority Bakkt Equity Holder’s GAAP financial statements;

 

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(q) make, change or rescind any material election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy with a Governmental Authority relating to a material amount of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment arising outside the ordinary course of business (except to the extent notice of such extension or waiver is provided to VIH), file any materially amended Tax Return or claim for refund of a material amount of Taxes, or make any material change to a method of accounting for Tax purposes, in each case, except in the ordinary course of business, as required by applicable Law (or a change in applicable Law), or as contemplated by this Agreement;

(r) agree to or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;

(s) fail to comply in any material respect with a material Law applicable to its business;

(t) accelerate or delay, other than in the ordinary course of business, consistent with past practice, the collection of any trade receivables or the payment of trade payables or any other liability or other material amounts;

(u) authorize or agree (in writing or otherwise) to take any of the actions described in this Section 5.1.

Nothing contained in this Agreement is intended provide to VIH, directly or indirectly, the right to control or direct the ordinary course operations of Bakkt Opco or any of its Subsidiaries prior to the Closing; provided further, notwithstanding anything in this Agreement the contrary, and for the avoidance of doubt, the parties hereto acknowledge and agree that none of Bakkt Opco or any of its Subsidiaries shall take any action prohibited by any of Section 5.1(a), (b), (c), (d), (h), (r) or (u) (solely as subclause (u) pertains to the foregoing subclauses) without the prior written approval of VIH.

Section 5.2 Conduct of Business of VIH. Except as set forth in Section 5.2 of the VIH Disclosure Letter, as otherwise expressly contemplated by this Agreement or the Redemption, as required by applicable Law or a Governmental Authority, or as consented to by Bakkt Opco (which consent shall not be unreasonably withheld, conditioned or delayed), during the Interim Period, VIH shall, and shall cause Merger Sub to, (x) conduct their respective businesses in the ordinary course of business, (y) conduct their respective businesses in material compliance with applicable Law, and (z) in each case in all material respects, use their commercially reasonable efforts to maintain and preserve their respective businesses and organizations intact, retain their respective present officers and employees and maintain and preserve their relationships with their officers and employees, suppliers, vendors, licensors, Governmental Authorities, creditors and others having business relations with such Person. Except as set forth in Section 5.2 of the VIH Disclosure Letter, as otherwise expressly contemplated by this Agreement or the Redemption, as required by applicable Law or a Governmental Authority, or as consented to by Bakkt Opco (which consent shall not be unreasonably withheld, conditioned or delayed), VIH shall not and shall cause Merger Sub not to:

 

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(a) change or amend any of the Organizational Documents of VIH or Merger Sub, or authorize or propose the same, except pursuant to the Transactions;

(b) other than pursuant to the PIPE Financing, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of any securities (including any debt securities and including any options, warrants, calls, conversion rights, commitments or other securities convertible into or otherwise relating to such securities) or authorize or propose any change in the equity capitalization or capital structure of VIH or Merger Sub, or enter into any agreement, understanding or arrangement with respect to the voting of equity securities of VIH;

(c) declare or pay any distribution in respect of the Equity Interests of VIH or Merger Sub or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any of the securities of VIH or Merger Sub or purchase, redeem or otherwise acquire or retire for value any of the securities of VIH or Merger Sub;

(d) incur, create, assume, guarantee or otherwise become liable for any indebtedness for borrowed money or guarantee any indebtedness of another Person (directly, contingently or otherwise), other than (x) as contemplated by the PIPE Financing, or (y) working capital loans made by VIH Sponsor necessary to finance VIH’s ordinary course administrative costs and expenses and expenses incurred in connection with the consummation of the Merger and the other Transactions (including any filings required under Section 5.7);

(e) make a loan or advance to or investment in any third party;

(f) make or agree to make any capital expenditures;

(g) sell, assign, lease, sublease, exclusively license, exclusively sublicense, pledge or otherwise transfer or dispose of or grant any option or exclusive rights in, to or under, any material assets of VIH or Merger Sub;

(h) acquire (whether by merger, consolidation, acquisition of stock or assets or any other form of business combination) any non-natural Person or business or initiate the start-up of any new business, non-wholly owned Subsidiary or joint venture or otherwise acquire any securities or material assets;

(i) enter into, amend, or terminate (other than terminations in accordance with their terms) any Contract with any Related Party, or waive any material right in connection therewith (other than working capital loans made by VIH Sponsor in accordance with Section 5.2(d));

(j) hire any employee or adopt or enter into any Benefit Plan;

(k) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;

 

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(l) make any change in accounting methods, principles or practices, except to the extent required by changes in Law or to comply with GAAP;

(m) make, change or rescind any material election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy with a Governmental Authority relating to a material amount of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment arising outside the ordinary course of business (except to the extent notice of such extension or waiver is provided to Bakkt Opco), file any materially amended Tax Return or claim for refund of a material amount of Taxes, or make any material change to a method of accounting for Tax purposes, in each case except in the ordinary course of business, as required by applicable Law (or a change in applicable Law) or as contemplated by this Agreement;

(n) amend, waive or otherwise change the Trust Agreement in any manner materially adverse to VIH; or

(o) authorize or agree (in writing or otherwise) to take any of the actions described in this Section 5.2.

Section 5.3 Access to Information; Confidential Information.

(a) During the Interim Period, Bakkt Opco shall and shall cause its Subsidiaries to, upon reasonable notice and during regular business hours and at VIH’s sole expense, for any purpose reasonably related to the Transactions or to VIH’s prospective interest in Bakkt Opco or its Subsidiaries, afford to the authorized Representatives of VIH reasonable access to (i) the financial books and records of Bakkt Opco and its Subsidiaries and (ii) such additional financial and operating data and other information relating to the business and properties of Bakkt Opco and its Subsidiaries as VIH may reasonably request; provided, that such access shall not materially disrupt or burden the operations of Bakkt Opco and its Subsidiaries and VIH and its authorized Representatives shall use their respective commercially reasonable efforts to minimize any such disruption; and, provided, further, that all such access shall be done in compliance with applicable Law and the social distancing requirements applicable to Bakkt Opco personnel. Notwithstanding anything to the contrary contained in this Agreement, neither Bakkt Opco nor any of its Subsidiaries shall be required pursuant to this Section 5.3(a) to provide (i) any information or access that Bakkt Opco reasonably believes would violate applicable Law, including antitrust Laws and data protection Laws, rules or regulations or the terms of any applicable confidentiality obligation or cause forfeiture of attorney/client privilege, (ii) if Bakkt Opco or any of its Affiliates, on the one hand, and VIH or any of its Affiliates, on the other hand, are adverse parties in a litigation, any information that is reasonably pertinent thereto or (iii) any information or access to the extent that it relates to interactions with other prospective buyers of Bakkt Opco and its Subsidiaries prior to the date of this Agreement or the negotiation of this Agreement and the Transaction Documents and the Transactions. VIH shall not contact or communicate with any of Bakkt Opco’s or any Subsidiaries’ customers, suppliers or employees (other than contact with employees to the extent permitted by this Section 5.3(a)) without Bakkt Opco’s prior written consent.

 

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(b) During the Interim Period, VIH shall and shall cause Merger Sub to, upon reasonable notice and during regular business hours and at Bakkt Opco’s sole expense, afford to the authorized Representatives of Bakkt Opco reasonable access to (i) the financial books and records of VIH and Merger Sub and (ii) such additional financial and operating data and other information relating to the business and properties of VIH and Merger Sub as Bakkt Opco may reasonably request; and, provided, further, that all such access shall be done in compliance with applicable Law. Notwithstanding anything to the contrary contained in this Agreement, neither VIH nor Merger Sub shall be required pursuant to this Section 5.3(b) to provide (i) any information or access that VIH reasonably believes would violate applicable Law, including antitrust Laws and data protection Laws, rules or regulations or the terms of any applicable confidentiality obligation or cause forfeiture of attorney/client privilege, (ii) if Bakkt Opco or any of its Affiliates, on the one hand, and VIH or any of its Affiliates, on the other hand, are adverse parties in a litigation, any information that is reasonably pertinent thereto or (iii) any information or access to the extent that it relates to interactions with other prospective targets of VIH or Merger Sub or the negotiation of this Agreement and the Transaction Documents and the Transactions.

(c) VIH acknowledges and agrees that the Confidentiality Agreement, except as modified by Section 9.2 hereof, remains in full force and effect and that information provided by Bakkt Opco or any of its Subsidiaries, any Bakkt Equity Holder or any Bakkt Equity Holder’s Affiliates to VIH pursuant to this Agreement prior to the Closing shall be treated in accordance with the Confidentiality Agreement. If this Agreement is terminated prior to the Closing, the Confidentiality Agreement, except as modified by Section 9.2 hereof, shall remain in full force and effect in accordance with its terms. If the Closing occurs, the Confidentiality Agreement shall terminate effective as of the Closing.

(d) Each Party acknowledges and agrees that each is aware, and each of their respective controlled Affiliates is aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party hereby agrees, that during the Interim Period, except in connection with or support of the transactions contemplated by this Agreement (including any communications with potential PIPE Investors), while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliates or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of VIH or the Majority Bakkt Equity Holder, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing; provided that, in respect of VIH, the foregoing shall only be deemed to apply to VIH and its controlled Affiliates, agents, professional advisors, employees and officers.

Section 5.4 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice (and, in any event, within five (5) Business Days) to the other Parties of any event which would reasonably be expected to cause any of the conditions in Article VII not to be fulfilled or the fulfillment of those conditions being materially delayed. The delivery of any notice pursuant to this Section 5.4 shall in no circumstance be deemed to (i) modify the representations, warranties, covenants or agreements hereunder of the Party delivering such notice; (ii) modify any of the conditions set forth in Article VII; or (iii) cure or prevent any misrepresentation, inaccuracy, untruth or breach of any representation, warranty, covenant or agreement set forth in this Agreement or any Transaction Document or failure to satisfy any condition set forth in Article VII.

 

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Section 5.5 Cause Conditions to be Satisfied. Subject to Section 5.7, (a) Bakkt Opco shall, and Bakkt Opco shall cause its Subsidiaries to use reasonable best efforts to cause each of the conditions set forth in Section 7.1 and Section 7.2 to be satisfied at or prior to the Closing (including, without limitation, Section 7.1(c)); and (b) VIH and Merger Sub shall use reasonable best efforts to cause each of the conditions set forth in Section 7.1 and Section 7.3 to be satisfied at or prior to the Closing.

Section 5.6 PIPE Financing. Prior to the earlier of the Closing and the termination of this Agreement in accordance with its terms:

(a) Bakkt Opco shall cause the appropriate officers and employees thereof, to use reasonable best efforts to cooperate in connection with (x) the arrangement of the PIPE Financing and (y) the marketing of the transactions contemplated by this Agreement and the other Transaction Documents in the public markets and/or with existing VIH Shareholders, in each case as may be reasonably requesting by VIH, including by (i) participating in meetings, presentations, calls, due diligence sessions, drafting sessions and sessions with actual or potential PIPE Investors at mutually agreeable times and locations and upon reasonable advance notice (including the participation in any relevant “roadshow”); (ii) assisting with the preparation of customary materials for actual or potential PIPE Investors, offering documents, private placement memoranda, prospectuses and similar documents required in connection with the PIPE Financing (which shall not include pro forma financial information); (iii) providing financial statements and such other financial information regarding Bakkt Opco and its Subsidiaries, that is readily available or within its possession; and (iv) otherwise reasonably cooperating with VIH’s efforts (including VIH’s reasonable requests) to consummate the PIPE Financing.

(b) Unless otherwise approved in writing by Bakkt Opco (which approval may be given or withheld by Bakkt Opco in its sole discretion), VIH shall not permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify, the applicable purchase price per share or provide the applicable PIPE Investor any material post-Closing right in respect of the Surviving Company under any PIPE Subscription Agreement, in each case other than by termination of such PIPE Subscription Agreement (and a withdrawal of the applicable PIPE Investor) or a reduction in the PIPE Investor’s commitment under such PIPE Subscription Agreement (in which case, VIH shall provide Bakkt Opco prompt written notice of any such termination or reduction). In the event VIH determines to permit any other amendment or modification to be made to, any other waiver (in whole or in part) of, or provide any other consent to modify, any other material provision of any PIPE Subscription Agreement, VIH shall provide Bakkt Opco prompt written notice of any such amendment, modification, waiver or consent to modify.

Section 5.7 Governmental Consents and Filing of Notices. Each Party hereto shall, as promptly as reasonably practicable, use reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the Transaction Documents (the “Regulatory

 

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Filings”), and to amend as necessary in connection with the Transactions any License Applications. Each Party shall use reasonable best efforts to cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals and effect any such filing, withdrawal or amendment. With respect to the Regulatory Filings, each of Bakkt Opco and VIH agrees to use its reasonable best efforts and cooperate with the other parties (i) in timely making inquiries with Governmental Authorities regarding the Regulatory Filings, (ii) in determining if any Regulatory Filings are required by Governmental Authorities, and (iii) in timely making all Regulatory Filings (except with respect to such jurisdictions where the parties agree that a Regulatory Filing is not required). If VIH and Bakkt Opco determine that it is required for VIH to make any Regulatory Filing or otherwise provide information with respect to VIH or any VIH personnel to a Governmental Authority in connection with any License or License Application, then Bakkt Opco will, except as prohibited by applicable Law (in which case Bakkt Opco and/or its Subsidiaries, as applicable, will use commercially reasonable efforts to obtain any required permission to allow disclosure), timely provide, upon VIH’s reasonable request, relevant portions of all past filings and correspondence with Governmental Authorities with respect to any Licenses or License Applications related to such Regulatory Filing or information provision requirement that VIH and Bakkt Opco reasonably determine to be necessary to make a complete, accurate and timely Regulatory Filing or provision of information. The Parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding in any material respect the receipt of any Regulatory Filings or any other required consents, authorizations, orders and approvals that, if not received, would have a material adverse impact on the business of the Bakkt Opco and its Subsidiaries, taken as a whole.

Section 5.8 Registration Statement; VIH Shareholder Meeting; Information Statement.

(a) As promptly as reasonably practicable after the date of this Agreement, VIH shall, with the assistance, cooperation and reasonable best efforts of Bakkt Opco, prepare and file a Registration Statement on Form S-4 with the SEC (as such filing is amended or supplemented, and including the Proxy Statement contained therein, the “Registration Statement”), and with all other applicable regulatory bodies, for the purpose of registering the Bakkt Pubco Class A Shares and Bakkt Pubco Public Warrants to be issued or issuable in the Domestication, including the Bakkt Pubco Class A Shares issuable upon exercise of the Bakkt Pubco Public Warrants in accordance with their terms, which Registration Statement shall also contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of (i) providing the VIH Shareholders with the opportunity to redeem their VIH Class A Shares as contemplated by the VIH Memorandum and Articles, the SEC Reports and the Trust Agreement and (ii) soliciting proxies from the VIH Shareholders to vote, at an extraordinary general meeting of the VIH Shareholders to be called and held for such purpose (the “VIH Shareholder Meeting”), in favor of (A) the Domestication (including the adoption of the Bakkt Pubco Charter), (B) the adoption and approval of this Agreement and the Merger, (C) the adoption and approval of the Advisory Charter Proposals, (D) the adoption and approval of the Bakkt Pubco Equity Incentive Plan in the form attached hereto as Exhibit I (the “Equity Incentive Plan”), (E) election of the members of the Post-Closing Bakkt Pubco Board in accordance with Section 5.12(a), (F) the approval of the issuance of Bakkt Pubco Class A Shares issuable pursuant to the PIPE Financing and approval of the issuance of Bakkt Pubco Class A Shares and Bakkt Pubco Class V Shares issuable to Bakkt Equity Holders pursuant this Agreement, if required under rules and regulations of the National Stock Exchange, (G) any other matters necessary or advisable to effect the consummation of the Transactions (clauses (A) through (G) of this Section 5.8(a), collectively, the “Voting Matters”), and (H) the adjournment of the VIH Shareholder Meeting in accordance with Section 5.8(f), if necessary.

 

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(b) VIH shall comply in all material respects with all applicable Laws, any applicable rules and regulations of the National Stock Exchange, VIH Memorandum and Articles and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder, the holding of the VIH Shareholder Meeting and the Redemption. Whenever any event occurs which would reasonably be expected to result in the Registration Statement containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, VIH or Bakkt Opco, as the case may be, shall promptly inform the other party of such occurrence and cooperate in filing with the SEC or its staff or any other government officials, and/or mailing to the VIH Shareholders, an amendment or supplement to the Registration Statement.

(c) VIH (i) shall permit Bakkt Opco and its counsel to review and comment on the Registration Statement and any exhibits, amendments or supplements thereto (or other related documents), (ii) shall consider any such comments in good faith and shall accept all reasonable additions, deletions or changes suggested by Bakkt Opco and its counsel in connection therewith and (iii) shall not file the Registration Statement or any exhibit, amendment or supplement thereto without the prior written consent of Bakkt Opco, not to be unreasonably withheld, conditioned or delayed. As promptly as practicable after receipt thereof, VIH shall provide to Bakkt Opco and its counsel notice and a copy of all correspondence (or, to the extent such correspondence is oral, a complete summary thereof), including any comments from the SEC or its staff, between VIH or any of its Representatives, on the one hand, and the SEC, or its staff or other government officials, on the other hand, with respect to the Registration Statement, and, in each case, shall consult with Bakkt Opco and its counsel concerning any such correspondence. VIH shall not file any response letters to any comments from the SEC without the prior written consent of Bakkt Opco, such consent not to be unreasonably withheld, conditioned or delayed. VIH will advise Bakkt Opco, promptly after it receives notice thereof, of the time when the Registration Statement or any amendment or supplement thereto has been filed with the SEC, and the time when the Registration Statement is declared effective or any stop order relating to the Registration Statement is issued.

(d) VIH, with the assistance of Bakkt Opco, shall use its reasonable best efforts to cause the Registration Statement to comply with the rules and regulations promulgated by the SEC, to “clear” comments from the SEC and become effective as promptly as reasonably practicable. VIH, with the assistance of Bakkt Opco, also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the transactions contemplated hereby, and Bakkt Opco shall furnish all information concerning Bakkt Opco, its Subsidiaries and any of its members or stockholders as may be reasonably requested in connection with any such action. As soon as reasonably practicable following the declaration of effectiveness of the Registration Statement, VIH shall distribute the Proxy Statement and other proxy materials included in the Registration Statement to the VIH Shareholders, and pursuant thereto, shall (i) call the VIH Shareholder Meeting in accordance with applicable Law and the VIH Memorandum and Articles on a date as soon as reasonably practicable following the effectiveness of the Registration Statement, and (ii) use its reasonable best efforts to solicit proxies

 

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from the VIH Shareholders to vote in favor of adoption and approval of this Agreement and the other Voting Matters (including by enforcing the VIH Sponsor Letter). VIH shall appoint an inspector of elections in connection with the VIH Shareholder Meeting, and cause such inspector of elections to deliver or caused to be delivered an affidavit or certificate verifying the vote of such VIH Shareholder Meeting to the Trustee in accordance with the terms of the Trust Agreement.

(e) VIH, acting through the VIH Board, shall include in the Proxy Statement the recommendation of the VIH Board that the VIH Shareholders vote in favor of adoption and approval of this Agreement and the other Voting Matters and shall otherwise use its reasonable best efforts to obtain the VIH Shareholders’ Approval. Neither the VIH Board nor any committee or agent or Representative thereof shall withdraw (or modify in a manner adverse to Bakkt Opco), or propose to withdraw (or modify in a manner adverse to Bakkt Opco), the VIH Board’s recommendation that the VIH Shareholders vote in favor of adoption and approval of this Agreement and the other Voting Matters.

(f) VIH shall be entitled to postpone or adjourn the VIH Shareholder Meeting (i) to ensure that any supplement or amendment to the Registration Statement that the VIH Board has determined in good faith is required by applicable Law is disclosed to the Public Stockholders and for such supplement or amendment to be promptly disseminated to the Public Stockholders prior to the VIH Shareholder Meeting, (ii) if, as of the time for which the VIH Shareholder Meeting is originally scheduled (as set forth in the Registration Statement), there are insufficient VIH Ordinary Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the VIH Shareholder Meeting or (iii) on no more than three (3) occasions, as reasonably determined to be necessary or desirable by VIH; provided, however, that in no event shall VIH postpone or adjourn the VIH Shareholder Meeting beyond the date that is ten (10) Business Days prior to the Termination Date without the prior written consent of Bakkt Opco; and, provided, further, that in the event of a postponement or adjournment pursuant to clauses (i) or (ii) above, the VIH Shareholder Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.

(g) Promptly, but in any event within (i) twenty-four (24) hours after the execution hereof, in connection with the delivery of the Initial Bakkt Equity Holder Support Agreement, the Majority Bakkt Equity Holder shall have delivered, in the form of a written consent (“Written Consent”) pursuant to Section 18-302 of the DLLCA and Section 9.5 of the Bakkt Opco LLC Agreement (in the form attached to the Initial Bakkt Equity Holder Support Agreement) and (ii) within seven (7) days after the execution hereof, the Bakkt Equity Holders holding, together with persons delivering the Initial Bakkt Equity Holders Support Agreement, sufficient Bakkt Interests to obtain the Bakkt Equity Holders Approval shall, in connection with the delivery of the Support Agreements, deliver a written consent pursuant to Section 18-302 of the DLLCA and Section 9.5 of the Bakkt Opco LLC Agreement (in the form attached to the Support Agreements) constituting the Bakkt Equity Holders Approval to VIH. On or prior to the seventh (7th) Business Day following the date hereof, Bakkt Opco will deliver an information statement (the “Information Statement”), in a form reasonably acceptable to Bakkt Opco or VIH, to each Bakkt Equity Holder who has not executed a Written Consent pursuant to Section 18-302 of the DLLCA and Section 9.5 of the Bakkt Opco LLC Agreement in connection with the solicitation of their signatures to a Written Consent. VIH will as promptly as practicable provide information regarding VIH and Merger Sub reasonably requested by Bakkt Opco for inclusion in the Information Statement, which

 

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information shall be subject to the Confidentiality Agreement and shall be true and correct in all material respects. Bakkt Opco, acting through the Board of Managers of Bakkt Opco, shall include in the Information Statement and the Written Consent the recommendation of the Board of Managers of Bakkt Opco that the Bakkt Equity Holders vote (by executing a Written Consent) in favor of adoption and approval of this Agreement, the other Transaction Documents, the Merger and the other Transactions and shall otherwise use its commercially reasonable efforts to obtain the Bakkt Equity Holder Approval. Neither the Board of Managers of Bakkt Opco nor any committee or agent or Representative thereof shall withdraw (or modify in a manner adverse to VIH), or propose to withdraw (or modify in a manner adverse to VIH), Bakkt Opco’s Board of Managers’ recommendation that the Bakkt Equity Holders vote (by executing a Written Consent) in favor of adoption and approval of this Agreement, the other Transaction Documents, the Merger and the other Transactions.

Section 5.9 Disclosure Information.

(a) Except as otherwise provided herein or as required by applicable Law, none of the Parties shall make any disclosure or permit any of their respective Affiliates to make any public disclosure (whether or not in response to an inquiry) of the subject matter of this Agreement unless previously approved by VIH and Bakkt Opco in writing, which approval shall not be unreasonably conditioned, withheld or delayed. VIH and Bakkt Opco shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a press release announcing the execution of this Agreement (the “Signing Press Release”). VIH, Bakkt Opco and Bakkt Opco shall cooperate in good faith with respect to the prompt preparation of, and, as promptly as practicable after the execution of this Agreement (but in any event within four (4) Business Days thereafter), VIH shall file with the SEC, a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement (the “Announcement 8-K”). Prior to Closing, VIH and Bakkt Opco shall mutually agree upon and prepare the press release announcing the consummation of the Transactions (“Closing Press Release”). Concurrently with or promptly after the Closing, VIH shall issue the Closing Press Release. VIH and Bakkt Opco shall cooperate in good faith with respect to the preparation of, and, at least five (5) days prior to the Closing, VIH 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 Bakkt Opco and its accountant and the other “Form 10” information required to be included therein (the “Completion 8-K”). Concurrently with the Closing, or as soon as practicable (but in any event within four (4) Business Days) thereafter, Bakkt Pubco shall file the Completion 8-K with the SEC.

(b) Bakkt Opco shall provide VIH as promptly as reasonably practicable prior to the filing of the Registration Statement (or the Completion 8-K, as applicable) with the SEC, (i) an audited consolidated balance sheet of Bakkt Opco as of December 31, 2019, and as soon as reasonably practicable after the filing of the Registration Statement, an audited consolidated balance sheet of Bakkt Opco as of December 31, 2020, in each case together with related audited consolidated statements of operations, members’ equity and cash flows for the fiscal year ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of Bakkt Opco’s independent auditors (which reports shall be unqualified), prepared in accordance with GAAP, applied on a consistent basis throughout the covered periods, and Regulation S-X of the SEC and in each case, audited in accordance with the standards of the

 

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PCAOB (the “PCAOB Financial Statements”), (ii) all other audited and unaudited financial statements of Bakkt Opco and any company or business units acquired by it, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement, including the Proxy Statement, and/or the Completion 8-K (including pro forma financial information), (iii) all selected financial data of Bakkt Opco required by Item 301 of Regulation S-K, as necessary for inclusion in the Registration Statement and Completion 8-K and (iv) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the SEC with respect to the periods described in clauses (i) and (ii), above, as necessary for inclusion in the Registration Statement and Completion 8-K (including pro forma financial information).

(c) During the Interim Period, in connection with the preparation of the Registration Statement, Announcement 8-K, the Completion 8-K, the Signing Press Release, the Closing Press Release or any other statement, filing, notice or application (including any amendments or supplements thereto) made by or on behalf of VIH, Merger Sub or Bakkt Opco to any Governmental Authority in connection with the Transactions (each, a “Reviewable Document”), VIH and Bakkt Opco shall, upon request by the other, furnish the other with all information concerning themselves, their respective directors, managers, officers and shareholders (including the directors to be elected to the Post-Closing Bakkt Pubco Board pursuant to Section 5.12 hereof), assets, Liabilities, condition (financial or otherwise), business, operations and such other matters as may be reasonably necessary or advisable in connection with the preparation of such materials, which information provided shall not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.

(d) Whenever any event occurs which would reasonably be expected to result in any Reviewable Document containing any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, VIH or Bakkt Opco, as the case may be, shall promptly inform the other party of such occurrence and shall furnish to the other party any information reasonably related to such event and any information reasonably necessary or advisable in order to prepare an amendment or supplement to such Reviewable Document in order to correct such untruth or omission.

Section 5.10 Securities Listing. VIH shall use its reasonable best efforts to cause the Bakkt Pubco Class A Shares (including the Bakkt Pubco Class A Shares to be issued in connection with the Domestication, the Bakkt Pubco Class A Shares to be issued in the PIPE Financing and the Bakkt Pubco Class A Shares issuable upon exchange of Surviving Company Common Units in accordance with the Exchange Agreement) to be approved for listing on the National Stock Exchange as of the Closing.

Section 5.11 No Solicitation.

(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, written or oral, from any Person or group (other than, with respect to Bakkt Opco, VIH and the VIH Sponsor (or their respective Representatives, acting in their capacity as such) or, with respect to VIH, Bakkt

 

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Opco) at any time relating to an Alternative Transaction, and (ii) an “Alternative Transaction” means (A) any issuance, sale, pledge, disposal of, grant, transfer or encumbrance of any of the Bakkt Opco’s or any of its Subsidiaries’ Equity Interests or any merger, sale of substantial assets, liquidation, dissolution, reorganization, financing, refinancing, recapitalization, or similar transaction involving Bakkt Opco and/or any of its Subsidiaries, or any other transaction that would impede, delay, interfere with or prevent the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, other than issuances of Equity Interests not prohibited by Section 5.1 and assets sold in the ordinary course of business and (B) with respect to VIH, a transaction (other than the Transactions) concerning a Business Combination.

(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the Transactions, neither Bakkt Opco nor VIH shall, and each shall cause its Representatives to not, directly or indirectly, (i) take any action to solicit, assist, initiate or facilitate the making, submission or announcement of, or encourage, any Acquisition Proposal or Alternative Transaction, (ii) furnish, or afford access to, (including through any virtual data room) any information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, books and records, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives (other than the Majority Bakkt Equity Holder)) in all cases for the purpose of assisting with or facilitating, or that would otherwise reasonably be expected to lead to, an Acquisition Proposal or Alternative Transaction, (iii) enter into, continue, engage or participate in discussions or negotiations with any Person or group with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal or Alternative Transaction, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal or Alternative Transaction, (v) enter into an Alternative Transaction or negotiate or enter into any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to an Alternative Transaction or publicly announce an intention to do so, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party.

(c) Each Party shall notify the others as reasonably promptly as practicable (and in any event within forty-eight (48) hours) in writing of the receipt by such Party or any of its Representatives of (i) any inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could reasonably be expected to result in an Acquisition Proposal, and (ii) any request for information relating to such Party or its Affiliates, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal. For purposes of this Section 5.11, the term “Affiliates” shall exclude any special purpose acquisition companies that are Affiliates of VIH.

 

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Section 5.12 Post-Closing Board of Directors and Executive Officers.

(a) The Parties shall take all necessary action, including causing the directors of VIH to resign, so that effective as of the Closing, the board of directors of Bakkt Pubco (the “Post-Closing Bakkt Pubco Board”) will consist of five to seven (5 to 7) members, with one (1) designated by Bakkt Opco, one (1) designated by the VIH Sponsor, and the remaining members to appointed jointly by Bakkt Opco and the VIH Sponsor (collectively, the “Post-Closing Directors”). The directors to be designated jointly by Bakkt Opco and the VIH Sponsor shall include (i) a majority of “independent” directors for purposes of the listing rules of the exchange on which the Bakkt Pubco Class A Shares are traded and (ii) at least three qualified members of the audit committee of the Post-Closing Bakkt Pubco Board (with one (1) of such persons being an audit committee financial expert). Bakkt Pubco will not avail itself of any grace periods or “controlled company” exemptions provided by the listing rules of the exchange on which the Bakkt Pubco Class A Shares are traded applicable to the initial Post-Closing Bakkt Pubco Board. At the Closing, Bakkt Pubco will execute and deliver to each Post-Closing Director a customary director indemnification agreement, in form and substance reasonably acceptable to Bakkt Opco and VIH. In accordance with the Organizational Documents of Bakkt Pubco as in effect as of the Closing, the Parties acknowledge and agree that the Post-Closing Bakkt Pubco Board will be a classified board with three classes of directors, with:

(i) one (1) class of directors (the “Class I Directors”), initially serving a term effective from the Closing until the first annual meeting of the stockholders of Bakkt Pubco held after the Closing (but any subsequent Class I Directors serving a three (3)-year term), with the Class I Directors to be appointed jointly by Bakkt Opco and the VIH Sponsor, and who are intended to be (x) “independent” directors for purposes of the listing rules of the exchange on which the Bakkt Pubco Class A Shares are traded and (y) not Affiliated with either the Majority Bakkt Equity Holder or the VIH Sponsor;

(ii) a second class of directors (the “Class II Directors”), initially serving a term effective from the Closing until the second annual meeting of the stockholders of Bakkt Pubco held following the Closing (but any subsequent Class II Directors serving a three (3)-year term), with the two individuals designated by Bakkt Opco and the VIH Sponsor, respectively, to serve as Class II Directors; and

(iii) a third class of directors (the “Class III Directors”), serving a term effective from the Closing until the third annual meeting of the stockholders of Bakkt Pubco held following the Closing (but any subsequent Class III Directors serving a three (3)-year term), with the Class III Directors to be appointed jointly by Bakkt Opco and the VIH Sponsor, and who are intended to be (x) “independent” directors for purposes of the listing rules of the exchange on which the Bakkt Pubco Class A Shares are traded and (y) not Affiliated with either the Majority Bakkt Equity Holder or the VIH Sponsor.

(b) The Parties shall take all action necessary, including causing the executive officers of VIH to resign, so that the individuals serving as executive officers of Bakkt Pubco immediately after the Closing (other than the Chief Executive Officer or as otherwise approved by VIH) will be the persons who were serving as officers of Bakkt Opco immediately prior to Closing. The Chief Executive Officer of Bakkt Pubco and the Surviving Company following the Closing shall be the individual appointed by the Post-Closing Bakkt Pubco Board.

 

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Section 5.13 Trust Account Disbursement. VIH shall cause the Trust Account to be disbursed to VIH (or to such Persons as designated by VIH to pay any amounts contemplated by Section 2.3(a) or any amounts owed by VIH for its unpaid expenses or other liabilities as of the Closing) concurrently with the Closing upon the terms set forth in the Trust Agreement.

Section 5.14 Section 16. Prior to the Closing, the VIH Board, or an appropriate committee of “non-employee directors” (as defined in Rule 16b-3 of the Exchange Act) thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the acquisition of VIH and/or Bakkt Pubco equity securities, as applicable, in each case, pursuant to this Agreement and the Transaction Documents, by any person owning securities of Bakkt Opco and its Subsidiaries who is expected to become a director or officer (as defined under Rule 16a-1(f) under the Exchange Act) of Bakkt Pubco shall be an exempt transaction for purposes of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.

Section 5.15 Third-Party Consents. Upon the terms and subject to the conditions set forth in this Agreement, during the Interim Period, Bakkt Opco shall use commercially reasonable efforts to obtain any consents that are listed on Section 3.2(b) of the Bakkt Disclosure Letter.

Section 5.16 Unpaid Expenses. Concurrently with the preparation of the Closing Statement, each Party shall submit invoices and wire payment instructions with respect to each Person to whom Bakkt Transaction Expenses or VIH Transaction Expenses are to be paid at Closing.

Section 5.17 No Trading. During the Interim Period, except as otherwise expressly contemplated by this Agreement, (a) Bakkt Opco shall not, and shall cause its Representatives and Subsidiaries not to, engage in any transactions involving the Equity Interests of VIH (including, without limitation, the VIH Class A Shares) without the prior written consent of VIH and (b) VIH shall not, and shall cause its controlled Affiliates, agents, professional advisors, employees and officers not to, engage in any transactions involving the Equity Interests of the parent company of the Majority Bakkt Equity Holder without the prior written consent of the parent company of the Majority Bakkt Equity Holder.

Section 5.18 Advice of Changes. Bakkt Opco will from time to time advise VIH in writing of any event occurring subsequent to the date hereof that would render any representation or warranty of Bakkt Opco contained in Article III untrue or inaccurate in any material respect such that the applicable condition set forth in Section 7.2(a) would not be satisfied. Such disclosures (which shall make specific reference to the schedule to which such disclosure relates) shall amend and supplement the appropriate schedules of the Bakkt Opco Disclosure Letter delivered on the date hereof but, unless waived (or deemed to have been waived pursuant to the last sentence of this Section 5.18) by VIH, will not cure any breach of any representation or warranty made in respect of the matters that are the subject of any such disclosure to the extent that they would cause the failure of the condition to the Closing set forth in Section 7.2(a). Notwithstanding the foregoing, if the matter or matters giving rise to such supplement or amendment to the Bakkt Opco Disclosure Letter would result in a failure of such condition to the Closing set forth in Section 7.2(a), and (following disclosure thereof by Bakkt Opco to VIH pursuant to this Section 5.18) VIH elects to proceed with the Closing, such modifications shall be deemed to have been accepted and the condition waived and VIH shall not be entitled to exercise its rights of termination. For the avoidance of doubt, Section 11.17 shall not be applicable to this Section 5.18.

 

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Section 5.19 Cooperation Agreement. Promptly following the execution of this Agreement, VIH, in consultation with Bakkt Opco, will work in good faith with the parent company of the Majority Bakkt Equity Holder to memorialize a cooperation agreement between Bakkt Pubco and the parent company of the Majority Bakkt Equity Holder, to be effective as of the Closing and in a form reasonably acceptable to VIH and the parent company of the Majority Bakkt Equity Holder, which agreement will contain customary cooperation, information sharing and related provisions intended to facilitate compliance by the Majority Bakkt Equity Holder and its Affiliates following the Closing with its accounting, financial reporting, public disclosure and similar requirements insofar as they relate to the Majority Bakkt Equity Holder’s ownership interest in Bakkt Pubco and Bakkt Opco.

ARTICLE VI

OTHER COVENANTS

Section 6.1 Tax Matters.

(a) Intended Tax Treatment. The Parties intend that (i) the conversion contemplated by Section 2.2(c) is treated as a reorganization within the meaning of Section 368(a)(1)(E) of the Code, the Domestication is treated as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, and that this Agreement shall be adopted as a “plan of reorganization,” within the meaning of Section 1.368-2(g) of the Treasury Regulations (ii) Surviving Company is a continuation of Bakkt Opco for U.S. federal income tax purposes, (iii) the Available Cash to be paid to Bakkt Opco at Closing pursuant to Section 2.3(a)(iii), together with the amount of Bakkt Transaction Expenses paid at Closing pursuant to Section 2.3(a)(i) or reimbursed pursuant to Section 2.3(a)(ii), is treated as a contribution by Bakkt Pubco to Surviving Company in exchange for Surviving Company Common Units under Section 721 of the Code, and (iv) for U.S. federal income tax purposes, no Bakkt Equity Holder is treated as transferring an interest in Bakkt Opco or any other property or value to Bakkt Pubco in exchange for the Bakkt Pubco Class V Shares or any other property as a result of the Merger (collectively, the “Intended Tax Treatment”). The Parties shall report consistently with the Intended Tax Treatment on all Tax Returns, and no Party shall take any position in any Tax Return or with any Governmental Authority that is inconsistent with the Intended Tax Treatment unless required to do so by a “determination” as defined in Section 1313 of the Code.

(b) Tax Returns.

(i) Surviving Company shall have in effect an election under Section 754 of the Code for the taxable period which includes the Closing Date.

(ii) Bakkt Pubco and the Bakkt Equity Holders agree that in connection with the preparation and filing of Tax Returns of or with respect to Bakkt Opco and its Subsidiaries, to the extent permitted by applicable Law, deductions and/or losses of, attributable to or with respect to indebtedness of Bakkt Opco and its Subsidiaries, Employee Payments and Bakkt Transaction Expenses shall be claimed in taxable periods, or portions thereof, ending on or before the Closing Date.

 

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(c) Transfer Taxes. Notwithstanding any other provision in this Agreement or the Transaction Documents, all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement or the Transaction Documents (including any transfer or similar tax imposed by states or subdivisions) (“Transfer Taxes”) shall be borne by Bakkt Pubco, and paid when due. Bakkt Pubco shall, at its own expense, timely file all necessary Tax Returns and other documentation with respect to all such Taxes, and, if required by applicable Law, the Bakkt Equity Holders will join in the execution of any such Tax Returns and other documentation.

(d) Tax Cooperation. After the Closing, the Bakkt Equity Holders and Bakkt Pubco shall reasonably cooperate in connection with the filing of Tax Returns of Bakkt Opco and its Subsidiaries and any Tax Proceeding of Bakkt Opco or one of its Subsidiaries that, in each case, relates to a taxable period beginning on or prior to the Closing Date. Such cooperation shall include the provisions of records and information that are reasonably relevant to any such Tax Return or Tax Proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Following the Closing, Bakkt Pubco and Bakkt Opco and its Subsidiaries shall retain all books and records with respect to Tax matters pertinent to Bakkt Opco and its Subsidiaries for any taxable period beginning on or prior to the Closing Date until the seven (7)-year anniversary of the Closing Date.

(e) Tax Sharing Agreement. Each Bakkt Equity Holder shall terminate or cause to be terminated any and all of the Tax Sharing Agreements (excluding, for the avoidance of doubt, the Bakkt Opco LLC Agreement) on the Closing Date as between such Bakkt Equity Holder or any predecessor or Affiliate thereof, on the one hand, and Bakkt Opco (or Surviving Company) or any of its Subsidiaries, on the other hand, for all Taxes, regardless of the period in which such Taxes are imposed, and there shall be no continuing obligation to make any payments under any such Tax Sharing Agreements.

(f) Partnership Audit Regime. Without the prior written consent of VIH (or Bakkt Pubco), the Bakkt Equity Holders and Bakkt Opco (or Surviving Company) shall not, and shall cause their respective Affiliates not to, make or cause to be made any election under Treasury Regulations Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to Bakkt Opco (or Surviving Company) or its Subsidiaries. To the extent permitted by applicable Law, a “push out” election pursuant to Section 6226 of the Code (or any state or local equivalent thereof) with respect to Bakkt Opco (or Surviving Company) or any of its Subsidiaries that is or previously has been, as of the Closing Date, treated as a partnership for U.S. federal income tax purposes, shall be made, or caused to be made, in connection with any imputed underpayment of Taxes for any taxable period ending on or before the Closing Date.

Section 6.2 Further Assurances. From time to time after the Closing Date, upon reasonable request of any Party, each Party shall execute, acknowledge and deliver all such other instruments and documents, and shall take all such other actions, as may be required to carry out the provisions of this Agreement and consummate and make effective the Transactions.

 

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Section 6.3 Indemnification, Exculpation and Insurance.

(a) Bakkt Pubco, from and after the Closing Date through the sixth (6^th) anniversary of the Closing Date, shall cause the Organizational Documents of Bakkt Pubco, Surviving Company and their respective Subsidiaries to contain provisions no less favorable to the current or former directors, managers, officers or employees of such companies (collectively, “D&O Indemnitees”) with respect to limitation of certain liabilities, advancement of expenses and indemnification than are set forth as of the date of this Agreement in the Organizational Documents of such companies (which for Bakkt Pubco shall be the Bakkt Pubco Charter, the Bakkt Pubco Bylaws and an indemnification agreement with each director of Bakkt Pubco, and for Surviving Company shall be the Surviving Company LLC Agreement), which provisions are no less favorable than those in existence as of the date hereof and in each case shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the D&O Indemnitees with respect to any acts or omissions occurring at or prior to the Closing.

(b) Prior to the Closing, Bakkt Pubco, Bakkt Opco shall obtain “tail” coverage, for a period of at least six (6) years from and after Closing, with respect to Bakkt Opco’s and its Subsidiaries’ directors’ and officers’ liability insurance policies with coverage amounts, terms and conditions substantially similar to those of Bakkt Opco’s and its Subsidiaries’ directors’ and officers’ liability insurance policies in effect as of the date hereof and covering each D&O Indemnitee covered by Bakkt Opco’s and its Subsidiaries’ directors’ and officers’ liability insurance policies in effect as of the date hereof. Prior to the Closing, VIH shall obtain “tail” coverage, for a period of at least six (6) years, with respect to VIH’s or Merger Sub’s directors’ and officers’ liability insurance policies with coverage amounts, terms and conditions substantially similar to those of VIH’s or Merger Sub’s directors’ and officers’ liability insurance policies in effect as of the date hereof and covering each D&O Indemnitee covered by VIH’s or Merger Sub’s directors’ and officers’ liability insurance policies in effect as of the date hereof. Bakkt Pubco shall and shall cause Surviving Company to maintain each such “tail” policy and not take any action to adversely modify or terminate any such “tail” policy during the applicable tail period thereof.

(c) The provisions of this Section 6.3: (i) are intended to be for the benefit of, and shall be enforceable by, each D&O Indemnitee, who is an intended third-party beneficiary of this Section 6.3; and (ii) are in addition to any rights such D&O Indemnitees may have under the Organizational Documents of Bakkt Pubco, Bakkt Opco or their respective Subsidiaries, as the case may be, or under any applicable Contracts or Laws and not intended to, nor shall be construed or shall release or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Bakkt Pubco, Bakkt Opco or their respective Subsidiaries for any of their respective directors, officers or other employees (it being understood and agreed that the indemnification provided for in this Section 6.3 is not prior to or in substitution of any such claims under such policies).

(d) In the event Bakkt Pubco, Bakkt Opco, Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provisions shall be made so that the successors and assigns of Bakkt Pubco, Bakkt Opco or Surviving Company (as applicable) shall assume, at and as of the closing of the applicable transaction referred to in this Section 6.3(d), all of the obligations set forth in this Section 6.3.

 

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Section 6.4 Equity Incentive Plan. Prior to the Closing Date, VIH Shareholders shall approve the Equity Incentive Plan (with such changes as may be mutually agreed in writing by VIH and Bakkt Opco). Within two (2) Business Days following the expiration of the sixty (60)-day period following the date Bakkt Pubco has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, Bakkt Pubco shall file an effective registration statement on Form S-8 (or other applicable form, including Form S-3) with respect to the equity awards issuable under the Equity Incentive Plan, and Bakkt Pubco shall use reasonable best efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectus contained therein) for so long as awards granted pursuant to the Equity Incentive Plan remain outstanding.

Section 6.5 Shareholder Litigation. VIH shall promptly notify Bakkt Opco of, and give Bakkt Opco the opportunity to participate in (but not control) (subject to a customary joint defense agreement), the defense or settlement of any shareholder litigation against VIH or its directors or officers relating to the Transactions or any other transaction contemplated hereby; provided, however, that no such settlement shall be agreed to without Bakkt Opco’s consent (not to be unreasonably withheld, conditioned or delayed).

ARTICLE VII

CONDITIONS PRECEDENT

Section 7.1 Conditions Precedent to Obligations of VIH, Merger Sub and Bakkt Opco. The obligations of VIH, Merger Sub and Bakkt Opco to effect the Closing are subject to the satisfaction or waiver (provided that, for the avoidance of doubt, the conditions set forth in this Section 7.1 may only be waived jointly by Bakkt Opco and VIH), at or before the Closing, of the following conditions:

(a) No Injunctions or Restraints. No Law shall be in effect that prohibits, makes illegal, enjoins or prevents the consummation of the Transactions.

(b) VIH Shareholders’ Approval. The VIH Shareholders’ Approval shall have been obtained.

(c) Bakkt Equity Holders Approval. The Bakkt Equity Holders Approval shall have been obtained.

(d) Regulatory Approvals. The authorizations, consents, orders, approvals, non-objections, declarations, filings or waiting periods set forth on Section 7.1(d) of the Bakkt Disclosure Letter, including all required Regulatory Filings, shall have been made, received or expired, as applicable.

(e) Registration Statement Effectiveness. The Registration Statement shall have been declared effective by the SEC and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC or any other Governmental Authority.

 

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Section 7.2 Conditions Precedent to Obligations of VIH and Merger Sub. The obligations of VIH and Merger Sub to effect the Closing are subject to the satisfaction or waiver, at or before the Closing, of the following conditions:

(a) Accuracy of Representations and Warranties.

(i) The Bakkt Fundamental Representations shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date);

(ii) the representations and warranties made by Bakkt Opco set forth in Section 3.20 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing ((A) provided, that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (B) provided, further that representations and warranties made as of a specific date shall be true and correct in all material respects as of such date (except that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of such date)); and

(iii) the representations and warranties (other than the representations and warranties set forth in the foregoing clauses (i) and (ii)) made by Bakkt Opco in Article III shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing (except for representations and warranties made as of a specific date, which shall be true and correct as of such date) (in each case, without giving effect to any Material Adverse Effect or other materiality qualifications contained therein), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a Material Adverse Effect.

(b) Compliance with Covenants. Bakkt Opco shall have performed or complied in all material respects with all obligations, agreements and covenants contained in this Agreement to be performed or complied with by Bakkt Opco prior to the Closing.

(c) No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a Material Adverse Effect.

(d) Bakkt Opco Deliverables. Bakkt Pubco shall have received the deliverables set forth in Section 1.8(b) required to be delivered by Bakkt Opco upon the Closing.

 

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Section 7.3 Conditions Precedent to Obligations of Bakkt Opco. The obligation of Bakkt Opco to effect the Closing is subject to the satisfaction or waiver, at or before the Closing, of the following conditions:

(a) Accuracy of Representations and Warranties.

(i) The VIH Fundamental Representations shall (except for representations and warranties made as of a specific date, which shall be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of such date) be true and correct in all respects (except for inaccuracies that, individually or in the aggregate, are de minimis) as of the date of this Agreement and as of the Closing as if made as of the Closing;

(ii) the representations and warranties made by VIH and Merger Sub set forth in Section 4.20 shall be true and correct in all material respects as of the date of this Agreement and as of the Closing as if made as of the Closing ((A) provided, that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of the date of this Agreement and as of the Closing as if made as of the Closing; and (B) provided, further that representations and warranties made as of a specific date shall be true and correct in all material respects as of such date (except that representations and warranties qualified by Material Adverse Effect or other materiality qualifications shall be true and correct in all respects as of such date)); and

(iii) the representations and warranties (other than the representations and warranties set forth in the foregoing clauses (i) and (ii)) made by VIH and Merger Sub in Article IV shall be true and correct as of the date of this Agreement and as of the Closing as if made as of the Closing (except for representations and warranties made as of a specific date, which shall be true and correct as of such date) (in each case, without giving effect to any Material Adverse Effect or other materiality qualifications contained therein), except where the failure of such representations and warranties to be so true and correct would not, individually or in the aggregate, have a VIH Material Adverse Effect.

(b) Compliance with Covenants. VIH and Merger Sub shall have performed or complied in all material respects with all obligations, agreements and covenants contained in this Agreement to be performed or complied with by such Party prior to the Closing.

(c) No VIH Material Adverse Effect. Since the date of this Agreement, there shall not have occurred a VIH Material Adverse Effect.

(d) National Stock Exchange Listing Requirements. The Bakkt Pubco Class A Shares (including the Bakkt Pubco Class A Shares to be issued in connection with the Domestication, the Bakkt Pubco Class A Shares to be issued in the PIPE Financing and the Bakkt Pubco Class A Shares issuable upon exchange of Surviving Company Common Units in accordance with the Exchange Agreement) shall have been listed on a National Stock Exchange and shall be eligible for continued listing on a National Stock Exchange immediately following the Closing and after giving effect to the Redemption (as if it were a new initial listing by an issuer that had never been listed prior to Closing).

 

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(e) Appointment to the Board. The existing directors of VIH shall have resigned effective as of the Closing, and the Post-Closing Directors designated pursuant to Section 5.12(a) shall have been appointed in accordance with the DGCL and the Bakkt Pubco Organizational Documents to serve on the Post-Closing Bakkt Pubco Board effective as of the Closing.

(f) Appointment of Officers. The existing officers of VIH shall have resigned effective as of the Closing, and the post-Closing officers shall have been appointed in accordance with Section 5.12(b), the DGCL and the Bakkt Pubco Organizational Documents to serve effective as of the Closing.

(g) Domestication. The Domestication shall be consummated immediately prior to the Merger.

(h) PIPE Financing. The PIPE Financing shall have been consummated (subject to Section 5.6(b)).

(i) Available Cash. Available Cash shall be at least equal to the Minimum Available Cash.

(j) Bakkt Pubco Deliverables. Bakkt Opco shall have received the deliverables set forth in Section 1.8(a) required to be delivered by Bakkt Pubco upon the Closing.

Section 7.4 Frustration of Closing Conditions. No Party may rely on the failure of any condition set forth in Section 7.1, Section 7.2 or Section 7.3, as the case may be, to be satisfied if such failure was due to the failure of such Party to perform any of its obligations under this Agreement.

ARTICLE VIII

TERMINATION

Section 8.1 Termination. This Agreement may be terminated at any time prior to the Closing solely:

(a) by mutual written consent of VIH and Bakkt Opco;

(b) by either VIH or Bakkt Opco if the Closing shall not have occurred by the Termination Date; provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose failure (or with respect to VIH, Merger Sub’s failure) to materially fulfill any representation, warranty, covenant or obligation under this Agreement or other action has been the actual or proximate cause of the failure of the Closing to occur on or before the Termination Date;

 

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(c) by either VIH or Bakkt Opco, if any Governmental Authority having competent jurisdiction shall have issued a final, non-appealable order, decree or ruling, or there shall exist any Law, in each case that permanently prohibits, makes illegal, enjoins or prevents the consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any Party whose failure (or with respect to VIH, Merger Sub’s failure) to materially fulfill any representation, warranty, covenant or obligation under this Agreement or other material action has been the actual or proximate cause of such order, decree, ruling or Law;

(d) by either VIH or Bakkt Opco, if the VIH Shareholder Meeting has been held (including any adjournment or postponement thereof permitted by Section 5.8(f)), has concluded, VIH’s Shareholders have duly voted, and the VIH Shareholders’ Approval has not been obtained;

(e) by VIH (if neither it nor Merger Sub is in material breach of their respective representations, warranties, covenants and obligations under this Agreement) if there has been a breach of, or inaccuracy in, any representation, warranty, covenant or agreement of Bakkt Opco set forth in this Agreement, which breach or inaccuracy would cause any condition set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied if it remained uncured as of the Termination Date (and such breach or inaccuracy has not been cured or such condition has not been satisfied within twenty (20) Business Days after the receipt by Bakkt Opco of written notice thereof from VIH);

(f) by Bakkt Opco (if it is not in material breach of its representations, warranties, covenants and obligations under this Agreement) if there has been a breach of, or inaccuracy in, any representation, warranty, covenant or agreement of VIH or Merger Sub set forth in this Agreement, which breach or inaccuracy would cause any condition set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied if it remained uncured as of the Termination Date (and such breach or inaccuracy has not been cured or such condition has not been satisfied within twenty (20) Business Days after the receipt by VIH of written notice thereof from Bakkt Opco);

(g) by Bakkt Opco if (i) all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (other than conditions that by their terms or nature are to be satisfied at the Closing) on the date that the Closing should have been consummated in accordance with Section 1.3, (ii) Bakkt Opco has irrevocably confirmed by written notice to VIH and Merger Sub that all of the conditions set forth in Section 7.3 have been satisfied (other than conditions that by their terms or nature are to be satisfied at the Closing) or that it is willing to waive any such unsatisfied conditions and that Bakkt Opco is ready, willing and able to consummate the Closing and (iii) VIH and Merger Sub have failed to consummate the Transactions by the earlier of the day that is (x) ten (10) Business Days after the day the Closing is required to occur pursuant to Section 1.3 or (y) five (5) Business Days prior to the Termination Date;

(h) by Bakkt Opco, if Available Cash set forth on the Closing Statement is less than Minimum Available Cash; or

(i) By VIH, if (i) the Initial Bakkt Equity Holder Support Agreement (including the written consents contemplated therein) have not been executed and delivered within twenty-four (24) hours following the Parties’ execution of this Agreement and (ii) the Bakkt Equity Holders Approval shall not have been obtained within seven (7) days following the Parties’ execution of this Agreement.

 

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Section 8.2 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 8.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Party, which sets forth the provision of Section 8.1 under which such termination is made. In the event of any termination of this Agreement pursuant to Section 8.1, this Agreement forthwith shall become void and of no further force or effect, and no Party (nor any of its Representatives) shall have any liability or obligation hereunder, except (i) the provisions of Article X (Definitions) and the following Sections shall survive any such termination: Section 5.3(b) (Continued Effect of Confidentiality Agreement), Section 8.2 (Effect of Termination), Section 9.2 (Trust Account Waiver), and Article XI, and (ii) nothing herein shall relieve any Party from liability for a Willful and Intentional Breach of this Agreement or any Transaction Document prior to such termination.

ARTICLE IX

NO SURVIVAL; WAIVERS; GUARANTY

Section 9.1 No Survival; Waivers.

(a) The representations, warranties, covenants and agreements of the Parties and their Affiliates in this Agreement, any Transaction Document or in any agreement or document delivered pursuant to this Agreement prior to the Closing will not survive beyond the Closing such that no claim for breach of any such representation, warranty, covenant or agreement, detrimental reliance or other right or remedy (whether in contract, in tort or at law or in equity) may be brought after the Closing with respect thereto against any of the Parties or any of their respective Affiliates, and there will be no liability in respect thereof, whether such liability has accrued prior to or after the Closing, on the part of any of the Parties or any of their respective Affiliates, except only for the following: (i) (A) Fraud Claims, (B) the representations and warranties by any Bakkt Equity Holder expressly set forth within the Letter of Transmittal, or (C) those covenants and agreements of Bakkt Opco contained herein or those covenants and agreements of Bakkt Opco, any Bakkt Equity Holder, any of their respective Affiliates, or any other Person in any other Transaction Document or agreement or document delivered pursuant to this Agreement, in each case, that by their terms are to be performed in whole or in part at or after the Closing (including any representations and warranties made by such Person in such other Transaction Document, agreement or document which is made after the Closing or is contemplated to survive the Closing or the termination of this Agreement) (the “Excluded Bakkt Matters”) and (ii) (A) Fraud Claims, (B) those covenants and agreements of VIH or Merger Sub contained herein or those covenants and agreements of VIH or Merger Sub in any Transaction Document, in each case, that by their terms are to be performed in whole or in part at or after the Closing (including any representations and warranties made by such Person in such other Transaction Document which is made after the Closing or is contemplated to survive the Closing or the termination of this Agreement) and (C) the right to seek specific performance pursuant to Section 11.8 (“Excluded VIH Matters”).

 

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(b) VIH, for itself and on behalf of its Subsidiaries and, after the Closing, Surviving Company and its Subsidiaries, acknowledges and agrees that, from and after the Closing, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action it may have against any of Bakkt Opco, the Bakkt Equity Holders or any of their respective directors, managers, officers or Affiliates relating to the operation of Bakkt Opco and its Subsidiaries or their respective businesses prior to the Closing or relating to the subject matter of this Agreement or any Transaction Document, or as a result of any of the Transactions, whether arising under, or based upon, any Law (including common law) or otherwise (including any right, whether arising at law or in equity, to seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including as may arise under common law) are hereby irrevocably waived, except only for the Excluded Bakkt Matters. Furthermore, without limiting the generality of this Section 9.1(b), (i) no claim will be brought or maintained by, or on behalf of, VIH, Merger Sub or any of their respective Affiliates (including, after the Closing, Surviving Company and its Subsidiaries) against Bakkt Opco, the Bakkt Equity Holders or any of their respective directors, managers, officers or Affiliates in connection with this Agreement, any Transaction Document or the Transactions; and (ii) no recourse will be sought or granted against any of them, by virtue of, or based upon, any alleged misrepresentation or inaccuracy in, or breach of, any of the representations, warranties, covenants or agreements of Bakkt Opco or any other Person set forth or contained in this Agreement or any Transaction Document, or as a result of any of the Transactions, except, in each case of clause (i) and (ii), only for the Excluded Bakkt Matters or the rights provided to the Parties under Article VII and/or Article VIII. VIH acknowledges and agrees that neither it, nor any of its Subsidiaries, nor any of their respective Affiliates may avoid such limitation on liability set forth in this Section 9.1(b) by (A) seeking damages for breach of Contract, tort or pursuant to any other theory of liability, all of which are hereby waived or (B) asserting or threatening any claim against any Person that is not a Party hereto (or a successor to a Party hereto) for breaches of the representations, warranties, covenants or agreements contained in this Agreement or in any Transaction Document (other than in each case, for Excluded Bakkt Matters).

(c) Bakkt Opco, for itself and on behalf of its Subsidiaries, acknowledges and agrees that, from and after the Closing, to the fullest extent permitted under applicable law, any and all rights, claims and causes of action it may have against any of VIH, Bakkt Pubco, the VIH Shareholders (including VIH Sponsor) or any of their respective directors, members, managers, officers, investment managers, partners, employees, principals, investors, representatives, agents, predecessors, successors, assigns or Affiliates relating to the operation of VIH or Merger Sub or their respective businesses or relating to the subject matter of this Agreement or any Transaction Document, or as a result of any of the Transactions, whether arising under, or based upon, any Law (including common law) or otherwise (including any right, whether arising at law or in equity, to seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including as may arise under common law) are hereby irrevocably waived, except only for the Excluded VIH Matters. Furthermore, without limiting the generality of this Section 9.1(c), (i) no claim will be brought or maintained by, or on behalf of, Bakkt Opco or any Bakkt Equity Holder or any of their respective Affiliates against VIH, Bakkt Pubco, the VIH Shareholders (including VIH Sponsor) or any of their respective directors, members, managers, officers, investment managers, partners, employees, principals, investors, representatives, agents, predecessors, successors, assigns or Affiliates in connection with this Agreement, any Transaction Document or the Transactions; and (ii) no recourse will be sought or granted against any of them, by virtue of, or based upon, any alleged misrepresentation or inaccuracy in, or breach of, any of the representations, warranties, covenants or agreements of VIH or Merger Sub set forth or contained

 

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in this Agreement or any Transaction Document, or as a result of any of the Transactions, except, in each case of clause (i) and (ii), only for Excluded VIH Matters or the rights provided to the Parties under Article VII and/or Article VIII. Bakkt Opco acknowledges and agrees that neither it, nor any of its Subsidiaries, nor any of their respective Affiliates may avoid such limitation on liability under this Section 9.1(c) by (A) seeking damages for breach of Contract, tort or pursuant to any other theory of liability, all of which are hereby waived or (B) asserting or threatening any claim against any Person that is not a Party hereto (or a successor to a party hereto) for breaches of the representations, warranties, covenants or agreements contained in this Agreement or in any Transaction Document (other than in each case, Excluded VIH Matters).

(d) The Parties hereto agree that the limits imposed on each Party’s remedies with respect to this Agreement and the Transactions were specifically bargained for between sophisticated parties and were specifically taken into account in the determination of the amounts to be paid hereunder.

Section 9.2 Trust Account Waiver.

(a) Bakkt Opco understands that VIH has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and the overallotment shares acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of VIH’s public stockholders (including overallotment shares acquired by VIH’s underwriters) (the “Public Stockholders”), and that, except as otherwise described in the IPO Prospectus or as set forth in the Trust Agreement, VIH may disburse monies from the Trust Account only: (i) to the Public Stockholders in the event they elect to redeem their shares in connection with the consummation of VIH’s initial business combination (as such term is used in the IPO Prospectus) (the “Business Combination”) or in connection with an extension of the deadline to consummate a Business Combination, (ii) to the Public Stockholders if VIH fails to consummate a Business Combination within twenty-four (24) months after the closing of the IPO, (iii) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any franchise or income taxes and up to one hundred thousand dollars ($100,000) in liquidation expenses or (iv) to VIH after or concurrently with the consummation of a Business Combination.

(b) Bakkt Opco hereby agrees on behalf of itself and its Affiliates that:

(i) neither Bakkt Opco nor any of its Affiliates do now or at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, and shall not make any claim against the Trust Account (including any distributions therefrom), in each case, regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or the Transactions or any proposed or actual business relationship between VIH or its Representatives, on the one hand, and Bakkt Opco or its Representatives, on the other hand, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims against the Trust Account are collectively referred to hereafter as the “Released Claims”);

 

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(ii) Bakkt Opco on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that Bakkt Opco or any of its Affiliates may have against the Trust Account (including any distributions therefrom) now or in the future as a result of, or arising out of, any negotiations, Contracts or agreements with VIH or its Representatives, including this Agreement or the Transactions, and will not seek recourse against the Trust Account (including any distributions therefrom) in connection therewith (including for an alleged breach of this Agreement or any other agreement with VIH or its Affiliates);

(iii) the irrevocable waiver set forth in the immediately preceding clause (ii) is material to this Agreement and specifically relied upon by VIH and its Affiliates to induce VIH to enter in this Agreement, and Bakkt Opco further intends and understands such waiver to be valid, binding and enforceable against Bakkt Opco and each of its Affiliates under applicable Law; and

(iv) to the extent Bakkt Opco or any of its Affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to VIH or its Representatives, including this Agreement or the Transactions, which proceeding seeks, in whole or in part, monetary relief against VIH or Representatives, Bakkt Opco hereby acknowledges and agrees that Bakkt Opco’s and its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and such claim shall not permit Bakkt Opco or its Affiliates (or any Person claiming on any of their behalves or in lieu of any of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein.

(c) Notwithstanding the foregoing or anything to the contrary in the Confidentiality Agreement, nothing in this Section 9.2 or the Confidentiality Agreement shall waive, limit, amend, alter, change, supersede or otherwise modify the right of Bakkt Opco or any of its Affiliates to (i) bring any action or actions for specific performance, injunctive and/or equitable relief (including the right of Bakkt Opco to compel specific performance by VIH and/or Merger Sub of their respective obligations under this Agreement), (ii) bring or seek a claim for damages against VIH and/or Merger Sub, or any of their respective successors or assigns, for any breach of this Agreement against monies or other assets held outside the Trust Account (other than distributions therefrom to Public Stockholders as described in clauses (i) and (ii) of Section 9.2(a)), (iii) bring or seek a claim that Bakkt Opco or its Affiliates may have in the future against VIH’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account and any assets that have been purchased or acquired with any such funds), but excluding distributions therefrom to Public Stockholders as described in clauses (i) and (ii) of Section 9.2(a), or (iv) bring or seek a claim against any other Person (or any Affiliate thereof) that is party to an alternative Business Combination consummated by VIH. Furthermore, VIH shall not execute any definitive agreement related to such alternative Business Combination that (A) attempts to prevent Bakkt Opco or any Affiliate thereof from so bringing or seeking any such claim, or (B) permits the entity that survives such alternative Business Combination to not assume VIH’s obligation for damages in connection with this Agreement and the Transactions.

 

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ARTICLE X

DEFINITIONS

Section 10.1 Specific Definitions. Section 10.4 includes cross references for capitalized terms that are not otherwise defined in this Section 10.1.

(a) “Action” means a civil, criminal or administrative action, suit, claim, complaint, stipulation, demand, charge, hearing, audit, investigation, request (including request for information), arbitration or proceeding by or before any Governmental Authority.

(b) “Advisory Charter Proposals” means the non-binding proposals submitted for a vote at the VIH Shareholder Meeting.

(c) “Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly through one or more entities, controls or is controlled by, or is under common control with, such specified Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise. With respect to VIH, “Affiliates” shall include, without limitation, funds, accounts and/or other investment vehicles managed by Victory Park Capital Advisors, LLC.

(d) “Aggregate Merger Consideration” means (i) an aggregate of 208,200,000 Surviving Company Common Units and (ii) an equal number of Bakkt Pubco Class V Shares.

(e) “Available Cash” means, as set forth in the finally determined Closing Statement, an amount in cash equal to (i) the amount of funds available to VIH in the Trust Account following payment to all holders of VIH Class A Shares who have elected to redeem their shares in connection with the Transactions, (ii) plus the amount of funds available to VIH outside the Trust Account, and (iii) plus the gross cash proceeds of the PIPE Financing; in each case, prior to, and without taking account of, any VIH Transaction Expenses or Bakkt Transaction Expenses.

(f) “Bakkt Benefit Arrangement” means any Benefit Arrangement sponsored, maintained or contributed to by Bakkt Opco or any of its Subsidiaries or with respect to which Bakkt Opco or any of its Subsidiaries has any current or future Liability (whether direct or indirect, actual, contingent or otherwise, with respect to any of its assets or otherwise), in each case with respect to any present or former employees, consultants or service providers of Bakkt Opco or any of its Subsidiaries.

(g) “Bakkt Benefit Plan” means any Benefit Plan for which Bakkt Opco or any of its Subsidiaries is or has been the “plan sponsor” (as defined in Section 3(16)(B) of ERISA) or any Benefit Plan, or any other plan, policy, practice, program, agreement or other arrangement (including any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance termination, retention, retirement, supplemental retirement, profit sharing, change in control, vacation, sick, insurance, medical, welfare, fringe, or similar plan policy program, agreement or other arrangement) providing compensation or other benefits or remuneration that Bakkt Opco or any of its Subsidiaries maintains, sponsors, contributes to or to which it is obligated to make payments or has any current or future Liability, in each case with respect to any present or former employees of Bakkt Opco or any of its Subsidiaries.

 

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(h) “Bakkt Equity Holders” means, collectively, the holders of all of Bakkt Interests.

(i) “Bakkt Equity Holders Approval” means the affirmative vote or written consent of the holders of the requisite number of the then outstanding Bakkt Interests voting or consenting together in favor of the adoption of this Agreement, the Transaction Documents, the Merger and the other Transactions in accordance with the DLLCA and the Organizational Documents of Bakkt Opco.

(j) “Bakkt Equity Incentive Plan” means the Amended and Restated Bakkt Equity Incentive Plan.

(k) “Bakkt Fundamental Representations” means the representations and warranties set forth in Section 3.1(a) (Due Organization), Section 3.1(b) (Due Organization), Section 3.2(a) (Authorization), Section 3.3 (Capitalization), and Section 3.18 (Brokers and Agents).

(l) “Bakkt Indebtedness” means, without duplication, (i) indebtedness of the Bakkt Opco or any of its Subsidiaries for borrowed money (including the outstanding principal and accrued but unpaid interest), (ii) any other indebtedness of the Bakkt Opco or its any of its Subsidiaries that is evidenced by a note, performance or other bond, debenture, mortgage, credit agreement or other debt instrument or debt security, (iii) all obligations of the Bakkt Opco or any of its Subsidiaries for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn, called or claimed against, (iv) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Bakkt Indebtedness, and (v) all obligations described in clauses (i) through (iv) above of any other Person which is guaranteed by the Bakkt Opco or any of its Subsidiaries (as surety or otherwise) or which is secured by any of the assets of the Bakkt Opco or any of its Subsidiaries and all accrued and unpaid interest thereon, if any.

(m) “Bakkt Interests” means all of the outstanding units of limited liability company interests in Bakkt Opco, including the Class A Voting Units, the Class B Voting Units, the Class C Voting Units and the Bakkt Opco Incentive Units, each as set forth and defined in the Bakkt Opco LLC Agreement, but excluding the Participation Units.

(n) “Bakkt IP” means all Intellectual Property owned by Bakkt Opco or any of its Subsidiaries.

(o) “Bakkt Leased Real Property” means all Real Property leased by Bakkt Opco or any of its Subsidiaries.

(p) “Bakkt Management” means Bakkt Management, LLC, a Delaware limited liability company.

 

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(q) “Bakkt Opco Incentive Units” means the “Incentive Units” of Bakkt Opco (as defined in the Bakkt Opco LLC Agreement).

(r) “Bakkt Opco’s knowledge”, “knowledge of Bakkt Opco”, “known by Bakkt Opco” or phrases of similar import, mean the actual, after reasonable inquiry, knowledge of any Person named on Section 10.1(r) of the Bakkt Disclosure Letter.

(s) “Bakkt Opco LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of Bakkt Opco, dated as of February 28, 2020.

(t) “Bakkt Owned Real Property” means all Real Property owned by Bakkt Opco or any of its Subsidiaries.

(u) “Bakkt Pubco Class A Share” means a share of Class A common stock, par value $0.0001, of Bakkt Pubco, as set forth in the Bakkt Pubco Charter.

(v) “Bakkt Pubco Class V Share” means a share of Class V common stock, par value $0.0001, of Bakkt Pubco, as set forth in the Bakkt Pubco Charter.

(w) “Bakkt Pubco Public Warrants” means the Bakkt Pubco Warrants issued in exchange for the VIH Public Warrants in the Domestication.

(x) “Bakkt Real Property” means all Bakkt Owned Real Property and Bakkt Leased Real Property.

(y) “Bakkt Software” means all Software owned by Bakkt Opco or any of its Subsidiaries.

(z) “Bakkt Transaction Expenses” means (a) all costs and expenses incurred by or on behalf of Bakkt Opco or any of its Subsidiaries at or prior to the Closing in connection with the negotiation, preparation, execution and performance of this Agreement, the Transaction Documents and consummation of the Transactions and any related agreements in connection with the Transactions, including all fees and out of pocket expenses due all attorneys, accountants and financial advisors of Bakkt Opco or any of its Subsidiaries, and (b) Employee Payments.

(aa) “Benefit Arrangement” means any benefit plan, policy or arrangement, whether written or unwritten, that is not a Benefit Plan and that provides benefits, compensation, including employment agreements or consulting agreements, severance pay, stay or retention bonuses or compensation, termination or change in control payments or benefits, executive or incentive compensation, sick leave, vacation pay, disability pay, retirement, deferred compensation, bonus, stock-based or other equity based compensation, supplemental retirement, profit-sharing, hospitalization, medical or disability insurance, life insurance, tuition reimbursement, material fringe benefit and any plans subject to Section 125 of the Code.

(bb) “Benefit Plan” has the meaning given in Section 3(3) of ERISA, together with plans or arrangements that would be so defined if they were not otherwise exempt from ERISA by that or another section.

 

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(cc) “Board of Managers” means the board of managers of Bakkt Opco.

(dd) “Books and Records” means, with respect to any Person, any and all business records, financial books and records, minute books, sales order files, purchase order files, supplier lists, customer lists, studies, surveys, analyses, strategies, plans, forms, designs, diagrams, drawings, specifications and technical data.

(ee) “Business Day” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City are authorized or required by law to be closed for business; provided that such banks shall be deemed to be open for business in the event of a “shelter in place” order or similar closure of physical branch locations is required at the direction of any Governmental Authority if such banks’ electronic funds transfer systems (including wire transfers) are open for use by customers on such day.

(ff) “Code” means the United States Internal Revenue Code of 1986, as amended.

(gg) “Commercial Tax Agreement” means commercial agreements not primarily related to Taxes that contain agreements or arrangements relating to the apportionment, sharing, assignment or allocation of Taxes (such as financing agreements with Tax gross-up obligations or leases with Tax escalation provisions).

(hh) “Confidentiality Agreement” means the Non-Disclosure Agreement, dated November 18, 2020, by and between VIH and Bakkt Opco.

(ii) “Contract” means any legally binding contract, plan, undertaking, arrangement, concession, understanding, agreement, agreement in principle, franchise, permit, instrument, license, lease, sublease, note, bond, indenture, deed of trust, mortgage, loan agreement or other binding commitment, whether written or oral (including any amendments and other modifications thereto).

(jj) “Covered Representations” means the express representations and warranties (i) of Bakkt Opco, VIH and Merger Sub set forth in Article III or Article IV of this Agreement, respectively, as qualified by the Bakkt Disclosure Letter and the VIH Disclosure Letter, respectively or (ii) in any Transaction Document.

(kk) “Deemed Liquidation” means a hypothetical complete liquidation of Bakkt Opco immediately prior to the Effective Time pursuant to the rights and preferences of all outstanding classes of Bakkt Interests and Bakkt Opco Warrants of Bakkt Opco as of such time pursuant to Section 14.2 of the Bakkt Opco LLC Agreement, assuming the exercise in full immediately prior to the Effective Time of all outstanding Bakkt Opco Warrants.

(ll) “Employee Payments” means any change of control bonuses, transaction bonus, retention bonus, severance, phantom equity, profit participation or similar compensatory payments or rights, payable by Bakkt Opco or any of its Subsidiaries, in any case, made or required to be made, to any current or former employee, independent contractor, director, manager or officer of Bakkt Opco or one of its Subsidiaries solely as a result of the Transactions, in all cases, including the employer portion of any payroll and other employment Taxes payable in connection therewith, excluding any payments included on the Final Merger Consideration Spreadsheet.

 

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(mm) “Environmental Law” means any Law in any way relating to (i) the protection of human health and safety, to the extent relating to exposure to Hazardous Materials, (ii) the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (iii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure to Hazardous Materials), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts.

(nn) “Equity Interest” means, with respect to any Person, (i) any share, partnership or limited liability company interest, unit of participation or other similar interest (however designated) in such Person and (ii) any option, warrant, security, purchase right, conversion right, exchange right or other agreement that would entitle any other Person to acquire, exchange, convert or exercise any such interest in such Person (including share appreciation, phantom share, profit participation or other similar rights).

(oo) “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

(pp) “ERISA Affiliate” means any Person that, together with Bakkt Opco or any of its Subsidiaries, is treated as a single employer under Section 414 of the Code and the regulations issued thereunder.

(qq) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as they may be amended from time to time.

(rr) “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.

(ss) “Fraud Claim” means a claim against a Person for actual intentional fraud (not constructive fraud, negligent misrepresentation or similar theories) of such Person with respect to the making of a Covered Representation when made, with the intent to mislead or deceive and to induce reliance on such Covered Representation; provided, that, for the avoidance of doubt, no Person shall be liable for or as a result of any other Person’s actual intentional fraud.

(tt) “Governmental Authority” means any federal, state, tribal, local or foreign governmental or quasi-governmental entity or municipality or subdivision thereof or any authority, administrative body, department, commission, board, bureau, agency, court, tribunal or instrumentality, arbitration panel, commission or similar dispute resolving panel or body, or any applicable self-regulatory organization.

 

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(uu) “Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”, “hazardous chemical” or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material regulated under any Environmental Law.

(vv) “Intellectual Property” means the following subsisting in any jurisdiction throughout the world: (i) patents, patent disclosures and patent applications (including all related continuations, continuations-in-part, divisionals, reissues and reexaminations); (ii) trademarks, service marks, trade dress, trade names, Internet domain names, corporate names and other indicia of origin, in each case, whether or not registered, and all registrations and applications for registration or renewal of the foregoing, including intent-to-use registrations or similar reservations of marks, and any goodwill related thereto; (iii) copyrights, including copyrights in Software and other works of authorship, design rights, database rights and other rights in copyrightable work, whether registered as copyrights or unregistered, and registrations and applications for registration or renewal thereof, including moral rights of authors; (iv) rights in Trade Secrets; (v) rights in Software programs, including rights in all source code, object code and documentation related thereto, and rights in all Software modules, tools and databases; and (vi) all rights to seek past and future damages with respect to any infringement, misappropriation or violation of the foregoing.

(ww) “IPO Prospectus” means that certain prospectus filed with the SEC pursuant to Rule 424(b)(4) on September 22, 2020 in connection with the completion of VIH’s IPO.

(xx) “Law” means each applicable federal, state, local, municipal, foreign or other law, order, judgment, rule, code, statute, legislation, regulation, principle of common law, treaty, convention, requirement, variance, proclamation, edict, decree, writ, injunction, award, ruling or ordinance that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

(yy) “License” means any license, franchise, charter, Permit, order, approval or non-objection, no-action letter, regulatory waiver or exemptive relief, registration, membership, authorization or qualification issued under any applicable Law by any Governmental Authority, other than any licenses relating to Intellectual Property.

(zz) “Lien” means any mortgage, security interest, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge, preference, priority or other security agreement, option, warrant, attachment, right of first refusal, preemption, proxy, voting trust, conversion, put, call or other claim or right, restriction on transfer, under any shareholder or similar agreement, any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.

 

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(aaa) “Majority Bakkt Equity Holder” means Intercontinental Exchange Holdings, Inc., a Delaware corporation.

(bbb) “Material Adverse Effect” means any result, occurrence, fact, change, event or effect (collectively, “Events”) that, individually or in the aggregate with any other results, occurrences, facts, changes, events and/or effects, has had or would be reasonably likely to have a material adverse effect on (i) the business, assets, Liabilities, results of operations or condition (financial or otherwise) of Bakkt Opco and its Subsidiaries, taken as a whole, or (ii) the ability of Bakkt Opco to consummate the Transactions or to perform their respective obligations hereunder or under the Transaction Documents to which they are a party or bound. Notwithstanding the foregoing, for purposes of clause (i) above, no Event (by itself or taken with any and all of the other Events) that results from or arises out of or is related to any of the following shall be deemed to constitute or be taken into account in determining whether there has been, a Material Adverse Effect: (A) any change affecting generally the industries or markets in which Bakkt Opco and its Subsidiaries operate, including in any change in the financial markets, credit markets or capital markets in the United States or any other country or region in the world, (B) acts of God, including pandemics (including the COVID-19 virus or any mutation thereof) and the impact of such pandemics on the health of any officer, employee or consultant of Bakkt Opco and the actions of Governmental Authorities in response thereto, (C) any change in national or international political or social conditions, including (1) the engagement by the United States or any other country or group in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States or any other country, or any of their respective territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States or any other country or group, or (2) social unrest, including protests, demonstrations, riots, arson, conflagration, looting, boycotts, or the response of any Governmental Authorities or their authorized or unauthorized representatives to such actions, (D) any change in GAAP (or the interpretation thereof), (E) any change in Law, rules, regulations, Orders, or other binding directives issued by any Governmental Authority (or the interpretation thereof), (F) any failure by Bakkt Opco to meet any internal or external operating projections or forecasts or revenue or earnings predictions (provided, that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein), (G) the taking of any action expressly required by this Agreement or (H) the public announcement or pendency of this Agreement or any of the Transactions (including but not limited to any impact on the relationships of Bakkt Opco and its Subsidiaries with customers, vendors, or employees, including voluntary departures of employees in anticipation of the Transactions); provided, further, in each case under clauses (A), (B), (C), (D) or (E) above, that such change does not affect Bakkt Opco and its Subsidiaries in a disproportionate manner relative to other Persons operating in the industries or markets in which Bakkt Opco and its Subsidiaries operate (in which case it shall be taken into account in determining whether there has been a Material Adverse Effect but only to the extent of the incremental disproportionate effect thereof).

(ccc) “Merger Sub Equity Holder’s Approval” means the affirmative vote or written consent of VIH voting or consenting in favor of the adoption of this Agreement, which Merger Sub Equity Holder’s Approval has been effectuated.

 

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(ddd) “Minimum Available Cash” means an amount equal to four hundred twenty-five million dollars ($425,000,000).

(eee) “Multiemployer Plan” means any Benefit Plan described in Section 3(37) of ERISA, a “multiple employer plan” as defined in Section 413(c) of the Code, or a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.

(fff) “National Stock Exchange” means either The Nasdaq Stock Market LLC or the New York Stock Exchange, as applicable.

(ggg) “Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.

(hhh) “ordinary course of business” as used herein means the applicable Person’s ordinary course of business, consistent with past practice, as such practices may be modified from time to time to take into account any pandemic (including the COVID-19 virus or any mutation thereof), actions taken by Governmental Authorities arising out of any such pandemic.

(iii) “Organizational Documents” means: (i) the articles or certificate of incorporation and the bylaws of a corporation; (ii) the partnership agreement and any statement of partnership of a general partnership; (iii) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (iv) the limited liability company agreement, operating agreement and the certificate of organization of a limited liability company, (v) the trust agreement and any documents that govern the formation of a trust; (vi) any charter or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (vii) any amendment to any of the foregoing.

(jjj) “Parent Benefit Plans” means any Benefit Plan for which Intercontinental Exchange, Inc. is or has been the “plan sponsor” (as defined in Section 3(16)(B) of ERISA) or any Benefit Plan that Intercontinental Exchange, Inc. maintains or to which it is obligated to make payments or has any current or future Liability, in each case with respect to any present or former employees of Bakkt Opco or any of its Subsidiaries.

(kkk) “Participation Units” means the Participation Units as defined in the Bakkt Equity Incentive Plan, including any Phantom Unit (as defined in the Bakkt Equity Incentive Plan) as set forth in the Bakkt Opco LLC Agreement.

(lll) “Pension Plan” means any Benefit Plan subject to Section 412 of the Code or Section 302 of ERISA or Title IV of ERISA (including any Multiemployer Plan).

(mmm) “Permit” with respect to any Person, any License, accreditation, bond, franchise, permit, consent, approval, right, privilege, certificate or other similar authorization issued by, or otherwise granted by, any Governmental Authority or any other Person to which or by which such Person is subject or bound or to which or by which any property, business, operation or right of such Person is subject or bound.

 

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(nnn) “Permitted Liens” means (i) any Liens for Taxes that are not yet due and payable as of the Closing Date or for Taxes that the taxpayer is diligently contesting in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (ii) any landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other similar statutory Lien arising or incurred in the ordinary course of business that does not materially detract from the value or use of the property encumbered thereby, (iii) any minor imperfection of title, condition, easement and reservation of rights (including any easement and reservation of, or rights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes), encroachment, covenant or restriction that does not materially detract from the use of the property encumbered thereby or interfere or otherwise impair the current use, occupancy, value or marketability of title of the assets subject thereto, (iv) restrictions on transfers as required by state and federal securities Laws or pursuant to the terms of the Bakkt Opco LLC Agreement, (v) zoning, entitlement, building and other land use regulations and codes imposed by any Governmental Authority having jurisdiction over the Bakkt Real Property which are not violated in any material respect by the current use thereof, (vi) non-exclusive licenses of Intellectual Property granted in the ordinary course of business, and (vii) statutory Liens of lessors under the Real Property Leases for amounts not yet due, or Liens encumbering the fee interests (or any superior leasehold interest) in the Bakkt Leased Real Property.

(ooo) “Person” means any natural person, corporation, general partnership, limited partnership, limited liability company, limited liability partnership, proprietorship, trust, union, association, Governmental Authority or other entity, enterprise, authority or business organization.

(ppp) “Pre-Closing Tax Period” means all taxable years or other taxable periods that end on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date.

(qqq) “Public Software” means any Software that is licensed or distributed as (a) “free software” or “open source software”; (b) pursuant to any license identified as an “open source license” by the Open Source Initiative (www.opensource.org/licenses), including, but not limited to, any version of the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero General Public License (AGPL), MIT License (MIT), Common Public License, CDDL, Mozilla Public License, Academic Free License, Apache License, Artistic License (e.g., PERL) and BSD Licenses; or (c) pursuant to any “copyleft” license or any other license that substantially conforms to the Open Source Definition provided by the Open Source Initiative at opensource.org/osd.

(rrr) “Qualified Plan” means any Bakkt Benefit Plan that is intended to meet the requirements of Section 401(a) of the Code.

(sss) “Real Property” means all interests in real property including fee estates, leaseholds and subleaseholds, purchase options, easements, licenses, rights to access, and rights of way, and all buildings and other improvements thereon, together with any additions thereto or replacements thereof.

 

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(ttt) “Real Property Lease” means any lease, sublease, license or other Contract with respect to Real Property.

(uuu) “Redemption Price” means an amount equal to the price at which each VIH Class A Share (or after the Domestication, Bakkt Pubco Class A Share) is redeemed pursuant to the Redemption (as equitably adjusted for stock splits, stock dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the Bakkt Pubco Class A Shares after the Closing).

(vvv) “Related Party” means, with respect to any Person, such Person’s Affiliates, an executive officer or director of such Person or its Affiliates, or any immediate family member of any of the foregoing (or any of their Affiliates).

(www) “Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.

(xxx) “Representatives” means, with respect to any Person, such Person’s Affiliates and its and its Affiliates’ respective officers and directors (or Persons holding comparable positions), employees, consultants, independent contractors, subcontractors, advisors (including investment bankers), accountants, legal and other agents or legal representatives. For the avoidance of doubt, with respect to Bakkt Opco, the Majority Bakkt Equity Holder shall be deemed to be a Representative of Bakkt Opco.

(yyy) “SEC” means the U.S. Securities and Exchange Commission.

(zzz) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as they may be amended from time to time.

(aaaa) “Sensitive Data” means cardholder data and sensitive authentication data that must be protected in accordance with the requirements of the Payment Card Industry Data Security Standard.

(bbbb) “Software” means all (a) computer programs, applications, middleware, firmware, microcode, mobile applications and other software (and all derivative works, foreign language versions, enhancements, versions, releases, fixes, upgrades and updates thereto), including operating systems, algorithms, heuristics, models and methodologies, compilations, development tools, compilers, comments, user interfaces, menus, buttons and icons, application programming interfaces, files, data scripts, architecture, algorithms, and higher level or “proprietary” languages, in each case, whether in source code, object code or other form or format, including code, libraries, subroutines and other components thereof, all documentation relating thereto, and including any offerings of the foregoing as a service (SaaS); (b) testing, validation, verification and quality assurance materials; (c) databases, conversions, interpreters and compilations, including any and all data and collections of data, whether machine readable or otherwise; (d) descriptions, schematics, flow-charts and other work product used to design, plan, organize and develop any of the foregoing; (e) all documentation, including user manuals, web materials and architectural and design specifications and training materials, relating to any of the foregoing; (f) software development processes, practices, methods and policies recorded in permanent form, relating to any of the foregoing; and (g) performance metrics, sightings, bug and feature lists, build, release and change control manifests recorded in permanent form, relating to any of the foregoing.

 

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(cccc) “Straddle Period” means any taxable year or period beginning on or before and ending after the Closing Date.

(dddd) “Subsidiaries” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof or any partnership, association or other business entity of which a majority of the partnership or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, association or other business entity or is or controls the managing director or general partner of such partnership, association or other business entity.

(eeee) “Surviving Company Common Units” means the common units of Surviving Company, which such common units shall be non-voting common units, and which shall otherwise provide the holder thereof with, and subject the holder to, such rights, privileges, restrictions and obligations as set forth in the Surviving Company LLC Agreement.

(ffff) “Tax” (including with correlative meaning the term “Taxes”) means any and all United States federal, state, local, foreign, and other direct or indirect taxes, charges, fees, duties, contributions, levies or other similar assessments or liabilities, including, income, gross receipts, corporation, ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, registration, recording, excise, real property, personal property, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, national insurance, business license, business organization, environmental, workers compensation, payroll, profits, severance, stamp, occupation, windfall profits, customs duties, franchise and other taxes or similar assessments imposed by any Governmental Authority (whether payable directly or by withholding and whether or not requiring the filing of a tax return), and any deficiency assessments, interest, fines, penalties or additions to tax imposed with respect to such items; provided, that, for the avoidance of doubt, “Tax” and “Taxes” shall not include any unclaimed property or escheat obligations.

(gggg) “Tax Proceeding” means any audit, examination, investigation, litigation, dispute or other similar proceeding with respect to Taxes.

(hhhh) “Tax Return” means any and all United States federal, state, local, foreign, and other reports, returns (including elections, disclosures, information returns and claims for refunds), declarations, forms or statements relating to Taxes, including any schedule or attachment thereto and any amendment thereof filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or payment of Taxes or in connection with the administration, implementation or enforcement of or compliance with any legal requirement relating to any Tax.

 

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(iiii) “Tax Sharing Agreement” means any agreement or arrangement primarily related to Taxes pursuant to which Bakkt Opco (or Surviving Company) or any of its Subsidiaries (or VIH (or Bakkt Pubco), as applicable) is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings, excluding, for the avoidance of doubt, the Tax Receivable Agreement and any Commercial Tax Agreement.

(jjjj) “Termination Date” means September 30, 2021.

(kkkk) “Trade Secret” means mean any trade secrets or other rights in proprietary and confidential information, including rights in unpatented inventions, invention disclosures, technical data, financial data, personal information, supplier lists, customer lists, business production, or marketing plans, know-how, formulae, methods (whether or not patentable), designs, processes, procedures, compositions, schematics, ideas, algorithms, techniques, analyses, proposals, source code, object code, and data collections.

(llll) “Transaction Documents” means each of the agreements and instruments contemplated by this Agreement or otherwise related to the Transaction, in each case to be executed and delivered on the date hereof or on or prior to the Closing Date by a Bakkt Equity Holder, Bakkt Opco, VIH, Merger Sub, VIH Sponsor and/or any of their respective Affiliates. The Transaction Documents include the VIH Sponsor Letter, the Surviving Company LLC Agreement, the Exchange Agreement, the Tax Receivable Agreement, the Registration Rights Agreement, the Letter of Transmittal, the Bakkt Pubco Charter, the Bakkt Pubco Bylaws, the Voting Agreement, the Stockholders Agreement, Support Agreements, all documents and agreements entered into in connection with the PIPE Financing, including the PIPE Subscription Agreements.

(mmmm) “Treasury Regulations” means the Treasury Regulations promulgated pursuant to the Code, as amended from time to time, including the corresponding provisions of any successor regulations.

(nnnn) “VIH Benefit Arrangement” means any Benefit Arrangement sponsored, maintained or contributed to by VIH or Merger Sub or with respect to which VIH or Merger Sub has any current or future Liability (whether direct or indirect, actual, contingent or otherwise, with respect to any of its assets or otherwise), in each case with respect to any present or former employees, consultants or service providers of VIH or Merger Sub.

(oooo) “VIH Benefit Plan” means any Benefit Plan for which VIH or Merger Sub is or has been the “plan sponsor” (as defined in Section 3(16)(B) of ERISA) or any Benefit Plan, or any other plan, policy, practice, program, agreement or other arrangement (including any employment, bonus, incentive or deferred compensation, equity or equity-based compensation, severance termination, retention, retirement, supplemental retirement, profit sharing, change in control, vacation, sick, insurance, medical, welfare, fringe, or similar plan policy program, agreement or other arrangement) providing compensation or other benefits or remuneration that VIH or Merger Sub maintains, sponsors, contributes to or to which it is obligated to make payments or has any current or future Liability, in each case with respect to any present or former employees of VIH or Merger Sub.

 

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(pppp) “VIH Fundamental Representations” means the representations and warranties set forth Section 4.1 (Due Organization), Section 4.2(a) (Authorization), Section 4.3 (Capitalization) and Section 4.7 (Brokers and Agents).

(qqqq) “VIH’s knowledge”, “knowledge of VIH”, “known by VIH” or phrases of similar import or any of the foregoing with respect to VIH, mean the actual knowledge, after reasonable inquiry, of each Person named on Section 10.1(qqqq) of VIH Disclosure Letter.

(rrrr) “VIH Material Adverse Effect” means any Event that, individually or in the aggregate with any other results, occurrences, facts, changes, events and/or effects, has had or would be reasonably likely to have a material adverse effect on (i) the business, assets, Liabilities, results of operations or condition (financial or otherwise) of VIH and Merger Sub, taken as a whole, or (ii) the ability of VIH or Merger Sub to consummate the Transactions or to perform their respective obligations hereunder or under the Transaction Documents to which they are a party or bound. Notwithstanding the foregoing, for purposes of clause (i) above, no Event (by itself or taken with any and all of the other Events) that results from or arises out of or is related to any of the following shall be deemed to constitute or be taken into account in determining whether there has been, a VIH Material Adverse Effect: (A) any change affecting generally the industries or markets in which VIH and Merger Sub operate, including in any change in the financial markets, credit markets or capital markets in the United States or any other country or region in the world, (B) acts of God, including pandemics (including the COVID-19 virus or any mutation thereof) and the actions of Governmental Authorities in response thereto which are binding on VIH and Merger Sub, (C) any change in national or international political or social conditions, including the engagement by the United States or any other country or group in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States or any other country, or any of their respective territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States or any other country or group, (D) any change in GAAP (or the interpretation thereof), (E) any change in Law, rules, regulations, orders, or other binding directives issued by any Governmental Authority (or the interpretation thereof), (F) the taking of any action expressly required by this Agreement, (G) the public announcement or pendency of this Agreement or any of the Transactions or (H) the consummation and effects of the Redemption; provided, further, in each case under clauses (A), (B), (C), (D) or (E) above, that such change does not affect VIH or Merger Sub in a disproportionate manner relative to other Persons operating in the industries or markets in which VIH or Merger Sub operate.

(ssss) “VIH Public Units” means the units issued in the IPO or the overallotment consisting of one (1) VIH Class A Share and one-half (1/2) of a VIH Warrant.

(tttt) “VIH Shareholder” means any holders of VIH Class A Shares, VIH Class B Shares or VIH Preference Shares.

 

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(uuuu) “VIH Shareholders’ Approval” means the affirmative vote of the holders of, (i) a special resolution under Cayman Islands law with respect to the Domestication (including the adoption and approval of a certificate of corporate domestication and the Bakkt Pubco Charter), which requires a majority of at least two-thirds of the VIH Class A Shares and VIH Class B Shares that are present for and vote at the VIH Shareholder Meeting to vote in favor thereof, (ii) an ordinary resolution under Cayman Islands law with respect to (A) adoption and approval of this Agreement and the Merger, (B) adoption and approval of the Equity Incentive Plan, (C) the approval of the issuance of Bakkt Pubco Class A Shares issuable pursuant to the PIPE Financing and approval of the issuance of Bakkt Pubco Class A Shares and Bakkt Pubco Class V Shares issuable to Bakkt Equity Holders pursuant this Agreement, if required under National Stock Exchange rules and regulations, and (D) approval of the adjournment of the VIH Shareholder Meeting in accordance with Section 5.8(f), if necessary, which requires a majority of the VIH Class A Shares and VIH Class B Shares that are present for and vote at the VIH Shareholder Meeting to vote in favor thereof; and (iii) an ordinary resolution of the VIH Class B Shares with respect to the election of each of the Post-Closing Directors set forth in Section 5.12, which requires a majority of the VIH Class B Shares that are present for and vote at the VIH Shareholder Meeting to vote in favor thereof. The vote at the VIH Shareholder Meeting on any other matter than those described in the first sentence of this definition, including a vote on the Advisory Charter Proposals, shall not affect whether the VIH Shareholders’ Approval shall have been obtained.

(vvvv) “VIH Sponsor” means VPC Impact Acquisition Holdings Sponsor, LLC, a Delaware limited liability company.

(wwww) “VIH Transaction Expenses” means (i) all costs and expenses incurred or payable by VIH at or prior to the Closing in connection with the negotiation, preparation, execution and performance of this Agreement, the Transaction Documents and consummation of the Transactions, including the PIPE Financing, and any related agreements in connection with the Transactions, including all fees and out of pocket expenses due all attorneys, accountants and financial advisors of VIH, and the cost of preparing, filing and mailing the Registration Statement and the Proxy Statement, and any success fees due or otherwise earned upon the Closing (but in all cases excluding the cost of the “tail” directors’ and officers’ liability insurance policies purchased pursuant to Section 6.3), (ii) all deferred costs and expenses incurred by VIH in connection with its initial public offering, including $7,258,020.70 payable to VIH’s financial advisor in connection with deferred underwriting fees, and (iii) all other costs and expenses incurred or payable and unpaid by VIH in connection with the operation of VIH through the Effective Time, including, without double counting, all outstanding indebtedness of VIH.

(xxxx) “Warrant Interests” means that portion of the Aggregate Merger Consideration that would have been allocable (pursuant to Section 2.3(b)(ii) of this Agreement) to the Bakkt Opco Warrants outstanding immediately prior to the Effective Time if such Bakkt Opco Warrants had hypothetically been exercised in full into Bakkt Interests as of such time.

(yyyy) “Willful and Intentional Breach” means, with respect to any representation, warranty, agreement or covenant in this Agreement, a deliberate action or omission (including a failure to cure circumstances) where the breaching Party knows such action or omission is or would reasonably be expected to result in a breach of such representation, warranty, agreement or covenant, it being understood that such term shall include, in any event, the failure to consummate the Closing when required to do so by this Agreement.

 

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Section 10.2 Accounting Terms. Except as otherwise expressly provided in this Agreement, all accounting terms used herein shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered hereunder shall be prepared, in accordance with GAAP.

Section 10.3 Usage. The defined terms herein shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to “Articles”, “Sections”, “Exhibits”, “Annexes” and “Schedules” shall be deemed to be references to articles and sections of and exhibits, annexes and schedules to this Agreement unless the context shall otherwise require. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “predecessor” shall, when used with respect to any Person, mean such Person’s predecessors and any other Person for whose conduct such Person is or may be responsible. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References to “the date hereof,” “the date of this Agreement,” “the execution of this Agreement,” and phrases of similar import when used in this Agreement shall refer to the effective date of this Agreement as set forth on the first page hereof. Unless otherwise expressly provided herein, any statute defined or referred to herein or in any agreement or instrument that is referred to herein means such statute as from time to time amended, modified or supplemented, including succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Any reference to any federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. Unless otherwise expressly provided, wherever the consent of any Person is required or permitted herein, such consent may be withheld in such Person’s sole and absolute discretion. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. Reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement (including, in respect of VIH, Bakkt Pubco, and in respect of Bakkt Opco or Merger Sub, Surviving Company), and reference to a Person in a particular capacity excludes such Person in any other capacity. Unless context requires otherwise, any reference in this Agreement to a Person’s directors shall including any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall including any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Transaction Document to a Person’s shareholders or stockholders shall include any applicable direct owners of the Equity Interests of such Person, in whatever form.

 

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Section 10.4 Index of Defined Terms.

 

Defined Term		Section
Acquisition Proposal		Section 5.11(a)
Agreement		Introduction
Alternative Transaction		Section 5.11(a)
Announcement 8-K		Section 5.9(a)
Bakkt Disclosure Letter		Article III
Bakkt Non-Recourse Party		Section 11.16(a)
Bakkt Opco		Introduction
Bakkt Opco Warrant		Section 2.5
Bakkt Pubco		Recitals
Bakkt Pubco Bylaws		Section 2.1(d)
Bakkt Pubco Charter		Section 2.1(c)
Bakkt Pubco Public Warrants		Recitals
Bakkt Pubco Warrants		Recitals
Bakkt Representations		Section 4.24
Business Combination		Section 9.2(a)
Certificate of Merger		Section 1.4
Class I Directors		Section 5.12(a)(i)
Class II Directors		Section 5.12(a)(ii)
Class III Directors		Section 5.12(a)(iii)
Closing		Section 1.3
Closing Date		Section 1.3
Closing Press Release		Section 5.9(a)
Closing Statement		Section 2.7
Companies Act		Recitals
Completion 8-K		Section 5.9(a)
Computer Systems		Section 3.15(a)
control		Section 10.1(c)
controlled by		Section 10.1(c)
D&O Indemnitees		Section 6.3(a)
Data Privacy Practices		Section 3.15(b)
DGCL		Recitals
DLLCA		Recitals
Domestication		Recitals
Effective Time		Section 1.4
Enforcement Exceptions		Section 3.2(a)
Environmental Permits		Section 3.17
Equity Incentive Plan		Section 5.8(a)
Exchange Agreement		Section 1.8(a)(ii)
Excluded Bakkt Interests		Section 2.3(b)(i)
Excluded Bakkt Matters		Section 9.1(a)
Excluded VIH Matters		Section 9.1(c)
Final Merger Consideration Spreadsheet		Section 2.3(b)(ii)
Financial Statements		Section 3.4(a)
Formation Date		Section 3.4(a)
GAAP		Section 3.4(a)
Illustrative Merger Consideration Spreadsheet		Section 2.3(b)(ii)
Information Statement		Section 5.8(g)
Initial Bakkt Equity Holder Support Agreement		Recitals
Intended Tax Treatment		Section 6.1(a)

 

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Interim Period		Section 5.1
IPO		Section 9.2(a)
Joinder		Recitals
Letter of Transmittal		Section 2.6(a)
Liabilities		Section 3.4(d)
Material Contracts		Section 3.13(a)
Material Permits		Section 3.2(b)
Material VIH Contracts		Section 4.17(a)
Merger		Recitals
Merger Consideration		Section 2.3(b)(ii)
Merger Sub		Introduction
Most Recent Balance Sheet Date		Section 3.4(a)
Name Change		Recitals
OFAC		Section 3.20(d)
Original RRA		Recitals
Parties		Introduction
Party		Introduction
PCAOB Financial Statements		Section 5.9(b)
PIPE Financing		Recitals
PIPE Investors		Recitals
PIPE Subscription Agreements		Recitals
Post-Closing Bakkt Pubco Board		Section 5.12(a)
Post-Closing Directors		Section 5.12(a)
Proxy Statement		Section 5.8(a)
Public Certifications		Section 4.11(a)
Public Stockholders		Section 9.2(a)
Redemption		Section 4.14
Registered Bakkt IP		Section 3.14(a)
Registration Rights Agreement		Recitals
Registration Statement		Section 5.8(a)
Regulatory Filings		Section 5.7
Related Party		Section 3.19
Released Claims		Section 9.2(b)(i)
Requisite Bakkt Equity Holders		Recitals
Reviewable Document		Section 5.9(c)
SDN List		Section 3.20(d)
SEC Reports		Section 4.11(a)
Signing Press Release		Section 5.9(a)
Stockholders Agreement		Section 1.8(a)(vi)
Support Agreement		Recitals
Surviving Company		Recitals
Surviving Company LLC Agreement		Section 1.6
Tax Receivable Agreement		Section 1.8(a)(iii)
Transactions		Recitals
Transfer Taxes		Section 6.1(c)
Trust Account		Section 9.2(a)

 

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Trust Agreement		Section 4.14
Trustee		Section 4.14
under common control with		Section 10.1(c)
Voting Agreement		Section 1.8(a)(v)
Voting Matters		Section 5.8(a)
VIH		Introduction
VIH Board		Recitals
VIH Class A Shares		Section 4.3(a)
VIH Class B Shares		Section 4.3(a)
VIH Disclosure Letter		Article IV
VIH Financials		Section 4.11(b)
VIH Memorandum and Articles		Recitals
VIH Non-Recourse Party		Section 11.16(b)
VIH Ordinary Shares		Section 4.3(a)
VIH Preference Shares		Section 4.3(a)
VIH Public Warrants		Section 4.12
VIH Representations		Section 3.22
VIH Shareholder Meeting		Section 5.8(a)
VIH Sponsor Letter		Recitals
VIH Warrants		Section 4.3(a)
Written Consent		Section 5.8(g)

ARTICLE XI

GENERAL

Section 11.1 Notices. Any notice, request, claim, demand, waiver, consent, approval or other communication which is required or permitted hereunder shall be in writing and shall be deemed given (a) when delivered by hand (with written confirmation of receipt), (b) when received by the addressee if sent by a nationally recognized overnight courier postage prepaid (receipt requested), (c) on the date sent by email (with confirmation of transmission, and provided, that, unless affirmatively confirmed by the recipient as received, notice is also sent to such party under another method permitted in this Section 11.1 within two (2) Business Days thereafter) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third (3^rd) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 11.1):

If to VIH or Merger Sub prior to the Closing:

VPC Impact Acquisition Holdings

Victory Park Capital Advisors, LLC

150 North Riverside Plaza, Suite 5200

Chicago, Illinois 60606

Attn: Scott R. Zemnick

Email: szemnick@vpcadvisors.com

 

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With a copy to (which shall not constitute notice):

White & Case LLP

111 South Wacker Drive, Suite 5100

Chicago, IL 60606

Attn: Raymond Bogenrief

Email: raymond.bogenrief@whitecase.com

If to Bakkt Opco (prior to Closing):

Bakkt Holdings, LLC

5900 Windward Parkway, Suite 450

Alpharetta, GA 30005

Attn: General Counsel

Email: marc.dannunzio@bakkt.com

With a copy to (which shall not constitute notice):

Shearman & Sterling LLP

300 W. 6^th Street, 22^nd Floor

Austin, Texas 78701

Attention: J. Matthew Lyons

Email: matt.lyons@shearman.com

If to Bakkt Pubco or Surviving Company after Closing:

Bakkt Holdings, LLC

5900 Windward Parkway, Suite 450

Alpharetta, GA 30005

Attn: General Counsel

Email: marc.dannunzio@bakkt.com

With a copy to (which shall not constitute notice):

Shearman & Sterling LLP

300 W. 6^th Street, 22^nd Floor

Austin, Texas 78701

Attention: J. Matthew Lyons

Email: matt.lyons@shearman.com

With a copy to (which shall not constitute notice):

White & Case LLP

111 South Wacker Drive, Suite 5100

Chicago, IL 60606

Attn: Raymond Bogenrief

Email: raymond.bogenrief@whitecase.com

 

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Section 11.2 Entire Agreement. This Agreement (which includes the Bakkt Disclosure Letter, the VIH Disclosure Letter, the other schedules hereto and the exhibits hereto), the Transaction Documents and the Confidentiality Agreement set forth the entire understanding of the Parties with respect to the Transactions. Any and all previous agreements and understandings between or among the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement. Each of the Bakkt Disclosure Letter, the VIH Disclosure Letter, the other schedules and the exhibits is incorporated herein by this reference and expressly made a part hereof, and all terms used in the Bakkt Disclosure Letter, the VIH Disclosure Letter or any schedule or exhibit shall have the meaning ascribed to such term in this Agreement.

Section 11.3 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. None of the Parties hereto may assign its rights or obligations hereunder without the prior written consent of the other Parties, which consent shall not be unreasonably conditioned, withheld or delayed. No assignment shall relieve the assigning Party of any of its obligations hereunder.

Section 11.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Section 11.5 Expenses and Fees. If this Agreement is terminated in accordance with its terms, each of the Parties shall bear its own expenses in connection with the negotiation and execution of this Agreement, the performance of its obligations hereunder and the consummation of the Transactions, including, all fees and expenses of its legal counsel, investment bankers, financial advisors, accountants and other advisors. If the Merger is consummated, all Bakkt Transaction Expenses and VIH Transaction Expenses shall be borne by Bakkt Pubco.

Section 11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause or permit the application of laws of any jurisdictions other than those of the State of Delaware.

Section 11.7 Submission to Jurisdiction; WAIVER OF JURY TRIAL. Each of the Parties hereto (i) irrevocably and unconditionally submits to the exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, New Castle County, or, if that court does not have jurisdiction, a federal court sitting in Wilmington, Delaware (and in each case, any appellate courts thereof) in any action or proceeding arising out of or relating to this Agreement or any of the Transactions, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (iii) irrevocably and unconditionally agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iv) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the Transactions in any other court. Each Party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by

 

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suit on the judgment or in any other manner provided by Law. Each of the Parties hereto irrevocably and unconditionally waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any Party hereto may make service on another party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 11.1. Nothing in this Section 11.7, however, shall affect the right of any party to serve legal process in any other manner permitted by law. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING CONTEMPLATED HEREBY.

Section 11.8 Specific Performance. Each Party acknowledges that the other Parties will be irreparably harmed and that there will be no adequate remedy at law for any violation by any Party of any of the covenants or agreements contained in this Agreement or the Transaction Documents. It is accordingly agreed that, in addition to any other remedies which may be available upon the breach of any such covenants or agreements, each Party shall have the right to injunctive relief to restrain a breach or threatened breach of, or otherwise to obtain specific performance of, the other Parties’ covenants and agreements contained in this Agreement and the Transaction Documents, in any court of the United States or any state thereof having jurisdiction over the Parties and the matter, in addition to any other remedy to which it may be entitled, at law or in equity. Any Party seeking an injunction or injunctions to prevent breaches of any of the covenants or agreements contained in this Agreement or the Transaction Documents and to enforce specifically the terms and provisions of this Agreement or the Transaction Documents shall not be required to provide any bond or other security in connection with such order or injunction.

Section 11.9 Severability. If any provision of this Agreement or the application thereof to any Person or circumstances is held by a court of competent jurisdiction or other Governmental Authority to be invalid or unenforceable in any jurisdiction, the remainder hereof, and the application of such provision to such Person or circumstances in any other jurisdiction, shall not be affected thereby, and to this end the provisions of this Agreement shall be severable. Upon such determination by such court or other Governmental Authority, the Parties will substitute for any invalid or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision.

Section 11.10 Amendment; Waiver. This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties. Any extension or waiver by any Party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such Party.

Section 11.11 Absence of Third Party Beneficiary Rights. Except for Section 6.3, Article IX, Section 11.14 and Section 11.16, no provision of this Agreement is intended, nor will be interpreted, to provide or to create any third party beneficiary rights or any other rights of any kind in any client, customer, Affiliate, stockholder, officer, director, employee or partner of any Party or any other Person, other than the Parties.

 

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Section 11.12 Mutual Drafting. This Agreement is the mutual product of the Parties, and each provision hereof has been subject to the mutual consultation, negotiation and agreement of each of the Parties, and shall not be construed for or against any Party.

Section 11.13 Further Representations. Each Party acknowledges and represents that it has been represented by its own legal counsel in connection with the Transactions, with the opportunity to seek advice as to its legal rights from such counsel. Each Party further represents that it is being independently advised as to the tax consequences of the Transactions and is not relying on any representation or statements made by any other Party as to such tax consequences.

Section 11.14 Waiver of Conflicts.

(a) The Parties agree, on their own behalf and on behalf their respective directors, officers, managers, employees and Affiliates, that, following the Closing, Shearman & Sterling LLP may serve as counsel to one or more of the Bakkt Equity Holders or their Affiliates in connection with any matters related to this Agreement and the Transactions, including any litigation, claim or obligation arising out of or relating to this Agreement or the Transactions notwithstanding any representation by Shearman & Sterling LLP prior to the Closing Date of Bakkt Opco. The Parties hereby (i) waive any claim they have or may have that Shearman & Sterling LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (ii) agree that, in the event that a dispute arises after the Closing between VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company), on the one hand, and one or more of the Bakkt Equity Holders or any of their respective Affiliates, on the other hand, Shearman & Sterling LLP may represent one or more of the Bakkt Equity Holders or any of their respective Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company) and even though Shearman & Sterling LLP may have represented Bakkt Opco in a matter substantially related to such dispute. The Parties also further agree that, as to all communications prior to the Closing among Shearman & Sterling LLP and Bakkt Opco (or its Subsidiaries), one or more of the Bakkt Equity Holders or such Bakkt Equity Holders’ Affiliates and Representatives, that relate in any way to the Transactions, the attorney-client privilege and the expectation of client confidence belong to the applicable Bakkt Equity Holders and may be controlled by such Bakkt Equity Holders and shall not pass to or be claimed by VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company). Notwithstanding the foregoing, in the event that a dispute arises between VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company), on the one hand, and a third party other than a Party to this Agreement (or any Affiliate or Representative thereof) after the Closing, Surviving Company may assert the attorney-client privilege to prevent disclosure of confidential communications by Shearman & Sterling LLP to such third party; provided, however, that the Surviving Company may not waive such privilege without the prior written consent of the holders of a majority in interest of the Surviving Company Common Units held by the Bakkt Equity Holders at the Closing (which shall for the avoidance of doubt shall exclude the Surviving Company Common Units issued to Bakkt Pubco).

(b) The Parties agree, on their own behalf and on behalf their respective directors, officers, managers, employees and Affiliates, that, following the Closing, White & Case LLP may serve as counsel to VIH Sponsor and its Affiliates in connection with any matters related to this Agreement and the Transactions, including any litigation, claim or obligation arising out of

 

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or relating to this Agreement or the Transactions notwithstanding any representation by White & Case LLP prior to the Closing Date of VIH. The Parties hereby (i) waive any claim they have or may have that White & Case LLP has a conflict of interest or is otherwise prohibited from engaging in such representation and (ii) agree that, in the event that a dispute arises after the Closing between VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company), on the one hand, and VIH Sponsor or any of its Affiliates, on the other hand, White & Case LLP may represent VIH Sponsor or any of its Affiliates in such dispute even though the interests of such Person(s) may be directly adverse to VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company) and even though White & Case LLP may have represented VIH in a matter substantially related to such dispute. The Parties also further agree that, as to all communications prior to the Closing among White & Case LLP and VIH, VIH Sponsor or VIH Sponsor’s Affiliates and Representatives, that relate in any way to the Transactions, the attorney-client privilege and the expectation of client confidence belong to VIH Sponsor and may be controlled by VIH Sponsor and shall not pass to or be claimed by VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company). Notwithstanding the foregoing, in the event that a dispute arises between VIH (or Bakkt Pubco), Merger Sub or Bakkt Opco (or Surviving Company), on the one hand, and a third party other than a Party to this Agreement (or any Affiliate or Representative thereof) after the Closing, Bakkt Pubco may assert the attorney-client privilege to prevent disclosure of confidential communications by White & Case LLP to such third party; provided, however, that the Bakkt Pubco may not waive such privilege without the prior written consent of the VIH Sponsor.

Section 11.15 Currency. Whenever any payment hereunder is to be paid in “cash”, payment shall be made in the legal tender of the United States and the method for payment shall be by wire transfer of immediately available funds. In the event there is any need to convert U.S. dollars into any foreign currency, or vice versa, for any purpose under this Agreement, the exchange rate shall be that published by the Wall Street Journal on the date an obligation is paid (or if the Wall Street Journal is not published on such date, the first date thereafter on which the Wall Street Journal is published).

Section 11.16 No Recourse.

(a) Notwithstanding anything that may be expressed or implied in this Agreement or any Transaction Document, except with respect to Excluded Bakkt Matters, by its acceptance of the benefits of this Agreement, VIH and Merger Sub each covenants, agrees and acknowledges that no Persons other than Bakkt Opco have any liabilities, obligations, commitments (whether known or unknown or whether contingent or otherwise) hereunder and thereunder (except to the extent such Person is expressly identified as a party to such Transaction Document), and that, notwithstanding that the Bakkt Equity Holders or their respective managing members or general partners may be partnerships or limited liability companies, none of VIH or Merger Sub has any right of recovery under this Agreement or any Transaction Document, or any claim based on such liabilities, obligations, commitments against, and no personal liability shall attach to, the former, current or future equity holders, controlling Persons, directors, officers, employees, agents, Affiliates, members, managers or general or limited partners of any of Bakkt Opco or any former, current or future stockholder, controlling Person, director, officer, employee, general or limited partner, member, manager, Affiliate or agent of any of the foregoing (collectively, but not including Bakkt Opco, a “Bakkt Non-Recourse Party”), through Bakkt Opco,

 

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whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Bakkt Opco against any Bakkt Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or Law, or otherwise. Without limiting the foregoing, other than with respect to any Excluded Bakkt Matters, no claim will be brought or maintained by VIH, Merger Sub or any of their respective former, current or future general or limited partners, stockholders, direct or indirect equity holders, controlling Persons, managers, members, directors, officers, employees, Affiliates, affiliated (or commonly advised) funds, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, direct or indirect equity holder, equity financing source, controlling Person, manager, member, director, officer, employee, Affiliate, affiliated (or commonly advised) fund, representative, agent, assignee or successor of any of the foregoing (other than Bakkt Pubco) against any Bakkt Non-Recourse Party that is not otherwise expressly identified as a Party to this Agreement or such other Transaction Document, and no recourse will be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach or nonperformance of any of the representations, warranties, covenants or agreements of any Party hereto set forth or contained in this Agreement, any exhibit or schedule hereto, any other document contemplated hereby or any certificate, opinion, agreement or other document of Bakkt Opco or any other Person delivered hereunder (except to the extent such Person is expressly identified as a party to such Transaction Document). For the avoidance of doubt, nothing in this Section 11.16(a) shall limit the ability of VIH to exercise the rights expressly granted to VIH under Article VIII to terminate this Agreement in accordance with Article VIII or the rights expressly granted to VIH under Article VII to enforce or waive any closing condition to the extent provided in Article VII.

(b) Notwithstanding anything that may be expressed or implied in this Agreement or any Transaction Document, except with respect to Excluded VIH Matters, by its acceptance of the benefits of this Agreement (and with respect to each Bakkt Equity Holder, in accordance with the Letter of Transmittal delivered by such Bakkt Equity Holder in accordance with the requirements of this Agreement), Bakkt Opco and each Bakkt Equity Holder each covenants, agrees and acknowledges that no Persons other than VIH and Merger Sub have any liabilities, obligations, commitments (whether known or unknown or whether contingent or otherwise) hereunder and thereunder (except to the extent such Person is expressly identified as a party to such Transaction Document), and that, notwithstanding that the VIH Shareholders (including VIH Sponsor) or their respective managing members, investment managers or general partners may be partnerships or limited liability companies, none of Bakkt Opco, or the Bakkt Equity Holders, has any right of recovery under this Agreement or any Transaction Document, or any claim based on such liabilities, obligations, commitments against, and no personal liability shall attach to, the former, current or future equity holders, controlling Persons, directors, officers, employees, agents, Affiliates, members, managers, investment managers, funds, or general or limited partners of any of VIH or Merger Sub or any former, current or future stockholder, controlling Person, director, officer, employee, general or limited partner, member, manager, investment manager, funds, Affiliate or agent of any of the foregoing (collectively, but not including VIH or Merger Sub, a “VIH Non-Recourse Party”), through VIH or Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of VIH or Merger Sub (or their respective successors) against any VIH Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or Law, or otherwise. Without limiting the foregoing, other than

 

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with respect to any Excluded VIH Matters, no claim will be brought or maintained by Bakkt Opco, the Bakkt Equity Holders or any of their respective former, current or future general or limited partners, stockholders, direct or indirect equity holders, controlling Persons, managers, members, directors, officers, employees, Affiliates, affiliated (or commonly advised) funds, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, direct or indirect equity holder, equity financing source, controlling Person, manager, member, director, officer, employee, Affiliate, affiliated (or commonly advised) fund, representative, agent, assignee or successor of any of the foregoing against any VIH Non-Recourse Party that is not otherwise expressly identified as a Party to this Agreement or such other Transaction Document, and no recourse will be brought or granted against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or breach or nonperformance of any of the representations, warranties, covenants or agreements of any Party hereto set forth or contained in this Agreement, any exhibit or schedule hereto, any other document contemplated hereby or any certificate, opinion, agreement or other document of Bakkt Opco or any other Person delivered hereunder (except to the extent such Person is expressly identified as a party to such Transaction Document). For the avoidance of doubt, nothing in this Section 11.16(b) shall limit the ability of Bakkt Opco to exercise the rights expressly granted to Bakkt Opco under Article VIII to terminate this Agreement in accordance with Article VIII or the rights expressly granted to Bakkt Opco under Article VII to enforce or waive any closing condition to the extent provided in Article VII.

Section 11.17 Made Available. The phrases “made available to VIH”, “provided to VIH” or other similar phrases as used in this Agreement shall mean that the subject documents were posted to the virtual data room maintained by Bakkt Opco or otherwise delivered to VIH or its Representatives at least two (2) days prior to the date of this Agreement.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the day and year first written above.

 

 

[Signature Page to Agreement and Plan of Merger]

EXHIBIT A

FORM OF SURVIVING COMPANY LLC AGREEMENT

(See attached)

 

 

BAKKT OPCO HOLDINGS, LLC

 

 

THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

Dated as of [●], 2021

THE COMMON UNITS OF BAKKT OPCO HOLDINGS, LLC HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OR ANY OTHER APPLICABLE SECURITIES LAWS AND ARE BEING SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH COMMON UNITS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND ANY OTHER APPLICABLE SECURITIES LAWS; (II) THE TERMS AND CONDITIONS OF THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT; AND (III) ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BETWEEN THE MANAGING MEMBER AND THE APPLICABLE MEMBER. THE COMMON UNITS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS, THIS THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT, AND ANY OTHER TERMS AND CONDITIONS AGREED TO IN WRITING BY THE MANAGING MEMBER AND THE APPLICABLE MEMBER. THEREFORE, PURCHASERS AND OTHER TRANSFEREES OF SUCH COMMON UNITS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT OR ACQUISITION FOR AN INDEFINITE PERIOD OF TIME.

Table of Contents

 

				Page
ARTICLE I DEFINITIONS AND DETERMINATION OF VALUATION					3
Section 1.1		Definitions			3
ARTICLE II ORGANIZATIONAL MATTERS					15
Section 2.1		Formation of Company			15
Section 2.2		Limited Liability Company Agreement			15
Section 2.3		Name			15
Section 2.4		Purpose			15
Section 2.5		Principal Office; Registered Office			15
Section 2.6		Term			16
Section 2.7		No State-Law Partnership			16
Section 2.8		Fiscal Year			16
Section 2.9		Powers of the Company			16
Section 2.10		Members; Reclassification; Admission of New Members			17
Section 2.11		Resignation			17
Section 2.12		Investment Representations of Members			17
Section 2.13		Schedule of Members			17
ARTICLE III CAPITAL CONTRIBUTIONS					18
Section 3.1		Common Units			18
Section 3.2		Authorization and Issuance of Additional Units			18
Section 3.3		Non-certificated Units; Certificates; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Common Units			20
Section 3.4		Purchase or Redemption of Shares of Class A Common Stock			21
Section 3.5		Bakkt Pubco Equity Plans			21
Section 3.6		Registered Members			22
Section 3.7		Capital Accounts			22
Section 3.8		Negative Capital Accounts			22
Section 3.9		No Withdrawal			22
Section 3.10		Loans From Members			22
ARTICLE IV DISTRIBUTIONS AND ALLOCATIONS					22
Section 4.1		Distributions			22
Section 4.2		Allocations			23
Section 4.3		Special Allocations			23
Section 4.4		Tax Allocations			25
Section 4.5		Indemnification and Reimbursement for Payments on Behalf of a Member			27
ARTICLE V COVENANTS					27
Section 5.1		Records and Accounting			27
Section 5.2		Transmission of Communications			28
Section 5.3		Governmental Consents and Filings			28
ARTICLE VI MANAGEMENT					28
Section 6.1		Authority of the Managing Member			28
Section 6.2		Actions of the Managing Member			29
Section 6.3		Compensation			29

 

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Section 6.4		Expenses			29
Section 6.5		Delegation of Authority			30
Section 6.6		Officers			30
Section 6.7		Purchase of Equity Securities			31
Section 6.8		Limitation of Liability			31
ARTICLE VII RIGHTS AND OBLIGATIONS OF MEMBERS					32
Section 7.1		Limitation of Liability of Members and Managing Member			32
Section 7.2		Lack of Authority			32
Section 7.3		No Right of Partition			33
Section 7.4		Members Right to Act			33
Section 7.5		Outside Activities of the Managing Member			33
ARTICLE VIII TAX MATTERS					34
Section 8.1		Preparation of Tax Returns			34
Section 8.2		Tax Elections			34
Section 8.3		Tax Classifications			34
Section 8.4		Tax Controversies			35
Section 8.5		Certain Actions			36
Section 8.6		Merger Agreement Conflicts			36
ARTICLE IX RESTRICTIONS ON TRANSFER OF UNITS; CERTAIN TRANSFERS					36
Section 9.1		Transfers by Members			36
Section 9.2		Market Stand-Off			37
Section 9.3		Restricted Units Legend			38
Section 9.4		Further Restrictions			38
Section 9.5		Transfer			39
Section 9.6		Assignee’s Rights			39
Section 9.7		Admissions, Resignations and Removals			40
Section 9.8		Admission of Assignees as Substitute Members			40
Section 9.9		Resignation and Removal of Members			41
Section 9.10		Section 1445 and 1446(f) Withholding			41
ARTICLE X DISSOLUTION AND LIQUIDATION					41
Section 10.1		Dissolution			41
Section 10.2		Liquidation and Termination			41
Section 10.3		Deferment; Distribution in Kind			42
Section 10.4		Cancellation of Certificate			43
Section 10.5		Reasonable Time for Winding Up			43
Section 10.6		Termination			43
Section 10.7		Return of Capital			43
Section 10.8		Restrictions on Termination Transactions			43
ARTICLE XI LIABILITY AND INDEMNIFICATION					44
Section 11.1		Liability of Members			44
Section 11.2		Indemnification			45
ARTICLE XII GENERAL PROVISIONS					47
Section 12.1		Amendments			47
Section 12.2		Confidentiality			47
Section 12.3		Title to Company Assets			48
Section 12.4		Notices			49

 

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Section 12.5		Binding Effect			49
Section 12.6		Creditors			49
Section 12.7		Waiver			49
Section 12.8		Counterparts			49
Section 12.9		Governing Law; Waiver of Jury Trial			49
Section 12.10		Severability			50
Section 12.11		Further Action			50
Section 12.12		Delivery by Facsimile or Electronic Transmission			50
Section 12.13		Offset			50
Section 12.14		Entire Agreement			50
Section 12.15		Remedies			51
Section 12.16		Descriptive Headings; Interpretation			51
Section 12.17		Attorneys’ Fees			51
Section 12.18		Representation of the Company by Shearman & Sterling LLP			51
Section 12.19		Amendment and Restatement of Prior LLC Agreement			52

SCHEDULES

Schedule of Members

 

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BAKKT OPCO HOLDINGS, LLC

THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

This THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”), dated as of [●], 2021 (the “Effective Date”), is entered into, by and among Bakkt Opco Holdings, LLC, a Delaware limited liability company (the “Company”) and the Members (as defined below).

WHEREAS, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act by the filing of a certificate of formation with the Secretary of State of the State of Delaware on July 31, 2018 (the “Certificate”);

WHEREAS, the Company and its members entered into that certain Limited Liability Company Agreement, effective as of August 2, 2018 (the “Initial LLC Agreement”);

WHEREAS, the Initial LLC Agreement was amended and restated by that certain Amended and Restated Limited Liability Agreement, effective as of December 19, 2018 (the “Amended LLC Agreement”);

WHEREAS, the Amended LLC Agreement was amended and restated by the Prior LLC Agreement;

WHEREAS, pursuant to Section 16.1 of the Prior LLC Agreement, the Prior LLC Agreement may be amended or modified upon the consent of the Company’s Board of Managers (the “Board”) and the Members holding a majority of the membership interests of the Company, including (i) the holders of a majority of the outstanding Voting Units (as defined in the Prior LLC Agreement), consenting or voting (as the case may be) together as a single class, (ii) the holders of a majority of the outstanding Class A Voting Units (as defined in the Prior LLC Agreement), Class B Voting Units (as defined in the Prior LLC Agreement) and Class C Voting Units (as defined in the Prior LLC Agreement), each consenting or voting (as the case may be) as separate classes, and (ii) the Minority Investors (as defined in the Prior LLC Agreement) holding a majority of the outstanding Minority Investor Units (as defined in the Prior LLC Agreement), consenting or voting (as the case may be) together as a single class, consenting or voting (as the case may be) separately as a class on an as-converted basis (together, the “Prior Member Requisite Consent”);

WHEREAS, the Board has previously approved this Agreement;

WHEREAS, the undersigned Members constitute the Prior Member Requisite Consent and desire to amend and restate the Prior LLC Agreement and to accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Prior LLC Agreement, including without limitation the replacement of the Board with the Managing Member (as defined below) as the Company’s managing body;

WHEREAS, substantially concurrently with the effectiveness of this Agreement, in accordance with the Agreement and Plan of Merger, dated as of January 11, 2021 (the “Merger Agreement”), by and among VPC Impact Acquisition Holdings, Pylon Merger Company LLC

 

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(“Merger Sub”), and the Company, Merger Sub has merged with and into the Company (the “Merger”), with the Company being the entity surviving the Merger;

WHEREAS, pursuant to the Merger Agreement, at the Effective Time (as defined in the Merger Agreement), by virtue of the Merger, the Class A Voting Units, the Class B Voting Units, the Class C Voting Units and the Incentive Units, but excluding the Participation Units (as defined in the Merger Agreement) held by each Member (as defined in the Prior LLC Agreement) were converted into the right to receive from the Company (as the “Surviving Company” following the Merger) and from Bakkt Holdings, Inc. a Delaware corporation (“Bakkt Pubco”), the number of Common Units and the number of validly issued, fully paid and nonassessable shares of Class V Common Stock, respectively, set forth opposite such Member’s name on the Final Merger Consideration Spreadsheet (as defined in the Merger Agreement);

WHEREAS, the Common Units resulting from the conversion, by virtue of the Merger, of Incentive Units into the right to receive the Merger Consideration are held by Bakkt Management, LLC, a Delaware limited liability company (“Bakkt Management”), on behalf of individuals who are or were Participants (as defined in the Prior Equity Incentive Plan, “Participants”) and, as contemplated by the Merger Agreement, may be subject to vesting and forfeiture provisions pursuant to the Prior Equity Incentive Plan and award agreements and notices issued thereunder;

WHEREAS, concurrently with the execution of this Agreement, the Company and certain of its Members are entering into the Exchange Agreement, pursuant to which each Paired Interest may be exchanged for shares of Class A Common Stock or the Cash Amount (as defined in the Exchange Agreement) on the terms and subject to the conditions set forth in the Exchange Agreement and the Tax Receivable Agreement;

WHEREAS, for U.S. federal and applicable state and local income tax purposes, the parties intend that, following the Merger, the Company be treated as continuing pursuant to Code Section 708 and Treasury Regulations Section 1.708-1;

WHEREAS, pursuant to the Merger Agreement, (i) the Company is adopting this Agreement, (ii) the Company changed its name from Bakkt Holdings, LLC to Bakkt Opco Holdings, LLC, and (iii) Bakkt Pubco, by its execution and delivery of this Agreement, is hereby admitted to the Company as a Member and is hereby designated as Managing Member, and in such capacity shall have the rights and obligations as provided in this Agreement; and

WHEREAS, the Members constituting the Prior Member Requisite Consent, on behalf of all of the Members (as defined in the Prior LLC Agreement) acknowledge and agree that the Schedule of Members will be based on the Final Merger Consideration Spreadsheet (as defined in the Merger Agreement) with respect to the Members (as that term is defined in the Prior LLC Agreement), which will be determinative absent manifest mathematical error, and each Member (as that term is defined in the Prior LLC Agreement) shall hold that number of Common Units set forth on such Schedule of Members (in lieu of the number of Units (as defined in the Prior LLC Agreement) set forth in Schedule I to the Prior LLC Agreement).

 

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NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree that the Prior LLC Agreement is amended and restated as follows:

ARTICLE I

DEFINITIONS AND DETERMINATION OF VALUATION

Section 1.1    Definitions. The following definitions shall be applied to the terms used in this Agreement for all purposes, unless otherwise clearly indicated to the contrary.

“Additional Member” means a Person admitted to the Company as a Member pursuant to Section 9.7.

“Adjusted Capital Account” means the Capital Account maintained for each Member, (a) increased by any amounts that such Member is obligated to restore or is treated as obligated to restore under Treasury Regulations Sections 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5) and (b) decreased by any amounts described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) with respect to such Member.

“Adjusted Capital Account Deficit” means with respect to any Capital Account as of the end of any Taxable Year, the amount by which the balance in such Capital Account is less than zero. For this purpose, such Person’s Capital Account balance shall be:

(a) reduced for any items described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6); and

(b) increased for any amount such Person is obligated to contribute or is treated as being obligated to contribute to the Company pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) (relating to partner liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i) (relating to Minimum Gain).

“Affiliate” of any Person means any Person that directly or indirectly Controls, is Controlled by or is under common Control with the Person in question; provided, that neither Bakkt Pubco, the Company nor any of their Subsidiaries shall be deemed an Affiliate of any other Member or any holder of securities of Bakkt Pubco.

“Agreement” has the meaning set forth in the preamble.

“Amended LLC Agreement” has the meaning set forth in recitals of this Agreement

“Assignee” has the meaning set forth in Section 9.6.

“Available Cash” means, as of a particular date, the amount of cash on hand which the Managing Member, in its reasonable discretion, deems available for distribution to the Members, taking into account all debts, liabilities and obligations of the Company then due and amounts that the Managing Member, in its reasonable discretion, deems necessary to expend or retain for working capital or to place into reserves for customary and usual claims with respect to the Company’s operations.

 

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“Bakkt Management” has the meaning set forth in recitals of this Agreement.

“Bakkt Pubco” has the meaning set forth in the recitals of this Agreement.

“Bakkt Pubco Board” means the board of directors of Bakkt Pubco.

“Bakkt Pubco Charter” means the certificate of incorporation (or equivalent organizational document) as filed with the secretary of state (or equivalent governmental body or department) of the state in which Bakkt Pubco is incorporated or formed, as applicable, as in effect and amended from time to time.

“Base Rate” means, on any date, a variable rate per annum equal to the rate of interest most recently published by The Wall Street Journal as the “prime rate” at large U.S. money center banks.

“Board” has the meaning set forth in the recitals of this Agreement.

“Book Value” means, with respect to any property, such property’s adjusted basis for U.S. federal income tax purposes, except as follows:

(a) The initial Book Value of any property contributed by a Member to the Company shall be the gross fair market value of such property at the time of such contribution, as reasonably determined by the Managing Member, provided that the Book Values of all properties of the Company shall be adjusted to equal their respective gross fair market values as reasonably determined by the Managing Member as of the date hereof;

(b) The Book Values of all properties shall be adjusted to equal their respective gross fair market values as reasonably determined by the Managing Member in connection with (i) the acquisition of an interest in the Company by any new or existing Member in exchange for more than a de minimis capital contribution to the Company, (ii) the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a “partner capacity” or by a new Member acting in a “partner capacity” or in anticipation of being a “partner” (in each case within the meaning of Treasury Regulations Section 1.704-1(b)(2)(iv)(f)(5)(iii)), (iii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an interest in the Company, (iv) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g)(1), (v) the grant of a Noncompensatory Option which is not treated as a partnership interest pursuant to Treasury Regulations Section 1.761-3(a); and (vi) the acquisition of a membership interest upon the exercise of a Noncompensatory Option in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(s); provided, however, that an adjustment pursuant to an event described in clause (i), (ii) or (iii) of this paragraph shall be made only if the Managing Member reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company; provided further, that if any Noncompensatory Options are outstanding upon the occurrence of an event

 

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described in clauses (i) through (v), the Company shall adjust the Book Values of its properties in accordance with Treasury Regulations Sections 1.704-1(b)(2)(iv)(f) and 1.704-1(b)(2)(iv)(h)(2);

(c) The Book Value of property distributed to a Member shall be the gross fair market value of such property as reasonably determined by the Managing Member; and

(d) The Book Value of all property shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such property pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and clause (f) of the definition of Net Profits and Net Losses; provided, however, that Book Value shall not be adjusted pursuant to this clause (d) to the extent the Managing Member determines that an adjustment pursuant to clause (b) hereof is necessary or appropriate in connection with the transaction that would otherwise result in an adjustment pursuant to this clause (d).

If the Book Value of property has been determined or adjusted pursuant to clauses (a), (b) or (d) hereof, such Book Value shall thereafter be adjusted by the Depreciation taken into account with respect to such property for purposes of computing Net Profits and Net Losses and other items allocated pursuant to Article IV.

“Business Day” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City are authorized or required by law to be closed for business; provided that such banks shall be deemed to be open for business in the event of a “shelter in place” order or similar closure of physical branch locations is required at the direction of any Governmental Entity if such banks’ electronic funds transfer systems (including wire transfers) are open for use by customers on such day.

“Capital Account” means the capital account maintained for a Member pursuant to Section 3.7.

“Capital Contribution” means, with respect to any Member, the amount of money and the initial Book Value of any property (other than money) contributed to the Company by such Member, net of any liabilities assumed by the Company upon contribution or to which such property is subject. Any reference in this Agreement to the Capital Contribution of a Member shall include a Capital Contribution of such Member’s predecessors in interest.

“Certificate” has the meaning set forth in the recitals of this Agreement.

“Class A Common Stock” has the meaning set forth in the Bakkt Pubco Charter.

“Class A Voting Units” has the meaning set forth in the Prior LLC Agreement.

“Class B Voting Units” has the meaning set forth in the Prior LLC Agreement.

“Class C Voting Units” has the meaning set forth in the Prior LLC Agreement.

“Class V Common Stock” has the meaning set forth in the Bakkt Pubco Charter.

 

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“Closing” has the meaning set forth in the Merger Agreement.

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

“Common Unit” means the limited liability company interests in the Company issued pursuant to the terms of this Agreement, having such rights, privileges, preferences, obligations and duties as are set forth in this Agreement.

“Company” has the meaning set forth in the Recitals.

“Company Interest” means the interest of a Member in allocations of Net Profits and Net Losses (or items thereof) and Distributions.

“Company Legal Matters” has the meaning set forth in Section 12.18(b).

“Confidential Information” has the meaning set forth in Section 12.2.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies whether through ownership of voting securities, by contract or otherwise.

“Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. L. §18-101, et seq., as it may be amended from time to time, and any successor to the Delaware Act.

“Depreciation” means, for each Taxable Year, an amount equal to the depreciation, amortization or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to property for such Taxable Year, except that (a) with respect to any property the Book Value of which differs from its adjusted tax basis for U.S. federal income tax purposes and which difference is being eliminated by use of the remedial allocation method pursuant to Treasury Regulations Section 1.704-3(d), Depreciation for such Taxable Year shall be the amount of book basis recovered for such Taxable Year under the rules prescribed by Treasury Regulations Section 1.704-3(d)(2), and (b) with respect to any other property the Book Value of which differs from its adjusted tax basis at the beginning of such Taxable Year, Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such Taxable Year bears to such beginning adjusted tax basis; provided that if the adjusted tax basis of any property at the beginning of such Taxable Year is zero, Depreciation with respect to such property shall be determined with reference to such beginning value using any reasonable method selected by the Managing Member.

“Distribution” means each distribution made by the Company to a Member, whether in cash, property or securities of the Company and whether by liquidating distribution or otherwise; provided that any recapitalization or exchange of securities of the Company, and any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Units shall not be a Distribution.

“Economic Risk of Loss” has the meaning assigned to that term in Treasury Regulations Section 1.752-2(a).

 

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“Effective Date” has the meaning set forth in the introduction.

“Effective Time” has the meaning set forth in the Merger Agreement.

“Election of Exchange” has the meaning set forth in the Exchange Agreement.

“Equity Securities” means (a) capital stock, membership interests, partnership interests, other equity interests, rights to profits or revenue and any other similar interest in any corporation, partnership, limited liability company or other business entity, (b) any security or other interest convertible into or exchangeable or exercisable for any of the foregoing, whether at the time of issuance or upon the passage of time or the occurrence of some future event and (c) any warrant, option or other right (contingent or otherwise) to acquire any of the foregoing.

“ERISA” means The Employee Retirement Income Security Act of 1974, as amended.

“Exchange” means an exchange of Paired Interests pursuant to, and in accordance with, the Exchange Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Exchange Agreement” means the exchange agreement dated as of or about the date hereof among the Company, Bakkt Pubco and the other Members of the Company from time to time party thereto, as amended from time to time.

“Exchange Rate” has the meaning set forth in the Exchange Agreement.

“Family Group” means, as to any particular Person, (i) such Person’s spouse, such Person’s and such Person’s spouse’s parents and descendants (whether natural or adopted) of such Person and such Person’s spouse’s parents, (ii) any trust solely for the benefit of such Person and/or any of the Persons described in clause (i), and (iii) any partnerships, corporations or limited liability companies where the only partners, shareholders or members are such Person and/or any of the Persons described in clauses (i) and (ii).

“Fiscal Year” means the Company’s annual accounting period established pursuant to Section 2.8.

“Flow-Through Tax Return” means a Tax Return of the Company or any of its Subsidiaries that is of a type that reports income, gain, deduction or loss from the operation of a partnership or other pass-through entity and that could reflect items of income, gain, deduction or loss required to be included on a Tax Return of a Member (whether or not such items are actually reflected thereon).

“Governmental Entity” means the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government.

 

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“Holder” means any Person who holds a Unit, whether as a Member or as an unadmitted Assignee of a Member.

“ICE” means Intercontinental Exchange, Inc., a Delaware corporation, together with its Affiliates, successors and assigns.

“Incentive Units” has the meaning set forth in the Prior LLC Agreement.

“Income Tax” means (i) all Taxes based upon, measured by, or calculated with respect to gross or net income, gross or net receipts or profits (including franchise Taxes and any capital gains, alternative minimum, and net worth Taxes, but excluding ad valorem, property, excise, sales, use, real or personal property transfer or other similar Taxes), (ii) Taxes based upon, measured by, or calculated with respect to multiple bases (including corporate franchise, doing business or occupation Taxes) if one or more of the bases upon which such Tax may be based, measured by, or calculated with respect to is included in clause (i) above, or (iii) withholding Taxes measured with reference to or as a substitute for any Tax included in clauses (i) or (ii) above.

“Indemnitee” means (a) Bakkt Pubco, (b) any additional or substitute Managing Member, (c) any Person who is or was a Partnership Representative, officer or director of Bakkt Pubco or any additional or substitute Managing Member, (d) any Person that is required to be indemnified by Bakkt Pubco as an “indemnitee” in accordance with the Bakkt Pubco Charter or bylaws of Bakkt Pubco as in effect from time to time, (e) any officer or director of Bakkt Pubco or any additional or substitute Managing Member who is or was serving at the request of Bakkt Pubco or any additional or substitute Managing Member as an officer, director, employee, member, Member, Partnership Representative, agent, fiduciary or trustee of another Person; provided, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (f) any officer of the Company, (g) any other Person the Managing Member in its sole discretion designates as an “Indemnitee” for purposes of this Agreement and (h) any heir, executor or administrator with respect to Persons named in clauses (a) through (g) above.

“Indemnitee-Related Entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise for which the Indemnitee has agreed, on behalf of the Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation.

“Initial LLC Agreement” has the meaning set forth in the recitals of this Agreement.

“Jointly Indemnifiable Claims” shall be broadly construed to mean, without limitation, any action, suit or proceeding for which an Indemnitee shall be entitled to indemnification or advancement of expenses from both the Indemnitee-Related Entities and the Company pursuant to applicable law, any agreement, certificate of incorporation, by-laws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or the Indemnitee-Related Entities, as applicable.

 

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“Law” means any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order issued or promulgated by any national, supranational, state, federal, provincial, local or municipal government or any administrative or regulatory body with authority therefrom with jurisdiction over the Company or any Member, as the case may be.

“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), any sale of receivables with recourse against the Company, any Subsidiary or any Affiliate thereof, any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar statute other than to reflect ownership by a third party of property leased to the Company, any Subsidiary or any Affiliate under a lease which is not in the nature of a conditional sale or title retention agreement, or any subordination arrangement in favor of another Person (other than any subordination arising in the ordinary course of business).

“Managing Member” means Bakkt Pubco or any successor managing member admitted to the Company in accordance with the terms of this Agreement, in its capacity as the managing member of the Company.

“Member” means each of the members named on the Schedule of Members and any Person admitted to the Company as a Substituted Member or Additional Member, but only so long as such Person is shown on the Company’s books and records as the owner of one or more Units.

“Member Nonrecourse Debt” has the meaning assigned to the term “partner nonrecourse debt” in Treasury Regulations Section 1.704-2(b)(4).

“Member Nonrecourse Debt Minimum Gain” has the meaning assigned to the term “partner nonrecourse debt minimum gain” in Treasury Regulations Section 1.704-2(i)(2).

“Member Nonrecourse Deductions” has the meaning assigned to the term “partner nonrecourse deductions” in Treasury Regulations Section 1.704-2(i)(2).

“Merger” has the meaning set forth in the recitals of this Agreement.

“Merger Agreement” has the meaning set forth in the recitals of this Agreement.

“Merger Consideration” has the meaning set forth in the Merger Agreement.

“Merger Sub” has the meaning set forth in the recitals of this Agreement

“Minimum Gain” means the partnership minimum gain determined pursuant to Treasury Regulations Section 1.704-2(d).

“Net Profit” or “Net Loss” means, for each Taxable Year, an amount equal to the Company’s taxable income or loss for such Taxable Year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, deduction or credit required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (without duplication):

 

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(a) Any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Net Profit and Net Loss pursuant to this definition of “Net Profit” and “Net Loss” shall be added to such taxable income or loss;

(b) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Net Profit or Net Loss pursuant to this definition of “Net Profit” and “Net Loss” shall be subtracted from such taxable income or loss;

(c) In the event the Book Value of any asset is adjusted pursuant to clause (b) or clause (c) of the definition of Book Value, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Book Value of the asset) or an item of loss (if the adjustment decreases the Book Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Net Profit or Net Loss;

(d) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed by reference to the Book Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Value;

(e) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year;

(f) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Section 743(b) is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s Units, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Profits or Net Losses; and

(g) Any items that are allocated pursuant to Section 4.3 shall be determined by applying rules analogous to those set forth in clauses (a) through (f) hereof but shall not be taken into account in computing Net Profits and Net Losses.

“New Equity Incentive Plan” means the Bakkt Holdings, Inc. 2021 Omnibus Employee Incentive Plan adopted in connection with the Merger as of the Effective Time and any successor or replacement equity incentive plan of Bakkt Pubco.

“Noncompensatory Option” means a “noncompensatory option” within the meaning of Treasury Regulations Sections 1.721-2(f) and 1.761-3(b)(2).

“Nonrecourse Deductions” has the meaning assigned that term in Treasury Regulations Section 1.704-2(b).

 

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“Nonrepresented Members” has the meaning set forth in Section 12.18.

“Paired Interest” means one Common Unit together with one share of Class V Common Stock.

“Participants” has the meaning set forth in the recitals of this Agreement.

“Partnership Representative” has the meaning set forth in Code Section 6223.

“Percentage Interest” means, with respect to any Member, the quotient obtained by dividing the number of Common Units then owned by such Member by the number of Common Units then owned by all of the Members, in each case, whether vested or unvested.

“Permitted Transfer” means a Transfer (a) in the case of a Member that is a natural Person, pursuant to applicable laws of descent and distribution, (b) in the case of a Member that is a natural Person, to or among such Member’s Family Group, (c) in the case of a Member that is an entity, a Transfer to its Affiliates; provided that in each case (i) the restrictions, conditions, and obligations contained in this Agreement, the Stockholders Agreement and any other agreement to which such Member is a party in its capacity as such shall continue to be applicable to such securities after any such Permitted Transfer, (ii) the transferee(s) of such securities shall have agreed in writing to be bound by the provisions of such agreements, and (iii) unless the transferee was a Member prior to such Permitted Transfer or has been admitted as a Substituted Member, such Member shall have retained all voting Control over such securities. For the avoidance of doubt, Transfers by ICE of Units to its other Affiliates shall be deemed to be a “Permitted Transfer.”

“Person” means an individual or any corporation, partnership, limited liability company, trust, unincorporated organization, association, joint venture or any other entity or organization, regardless of whether a legally-recognized person.

“Prior Equity Incentive Plan” means the Amended and Restated Bakkt Equity Incentive Plan, which was amended and restated effective as of May 15, 2020, and shall be further amended and restated as of the Effective Time, after which no additional awards may be made thereunder.

“Prior LLC Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement, effective February 28, 2020, among the Company and each Member listed on Schedule I attached thereto and such additional Persons who became Members of the Company from time to time in accordance with the terms thereof.

“Prior Member Requisite Consent” has the meaning set forth in the recitals of this Agreement.

“Proceeding” has the meaning set forth in Section 11.2(a).

“Recapture Gain” has the meaning set forth in Section 4.4(d).

“Regulatory Allocations” has the meaning set forth in Section 4.3(j).

 

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“Related Person” of any Person means (a) any Affiliate of such Person, (b) any Person in which such Person (together with its Affiliates) hold(s) (individually or in the aggregate and directly or indirectly) at least a fifteen percent (15%) voting or economic interest, (c) any entity in which such Person hold(s) (directly or indirectly) any voting or economic interest, or (d) each director or officer of such Person; provided, that, notwithstanding anything herein to the contrary, no Person shall be considered a Related Person of Bakkt Pubco.

“Representative” has the meaning set forth in Section 12.2.

“Required Interest” means one or more Members (excluding the Managing Member and any Members controlled by the Managing Member) holding a majority of the Units then owned by all of the Members (excluding the Units held by the Managing Member and any Members Controlled by the Managing Members); provided that, in the event no Person other than the Managing Member and/or Members controlled by the Managing Member hold Units, the “Required Interest” shall be deemed to mean the Managing Member.

“Retained Amount” has the meaning set forth in Section 4.1(c).

“Rights” means warrants, options or other rights to purchase or otherwise acquire Units or other Equity Securities in the Company.

“Schedule of Members” has the meaning set forth in Section 2.13.

“Securities Act” means the Securities Act of 1933, as amended, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule or regulation of the Securities Act shall be deemed to include any corresponding provisions of future law.

“Securities and Exchange Commission” means the United States Securities and Exchange Commission, including any governmental body or agency succeeding to the functions thereof.

“Similar Law” means any Law or regulation that could cause the underlying assets of the Company to be treated as assets of the Member by virtue of its limited liability company interest in the Company and thereby subject the Company and the Managing Member (or other persons responsible for the investment and operation of the Company’s assets) to Laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions contained in Title I of ERISA or Code Section 4975.

“Stockholders Agreement” means that certain Stockholders Agreement, dated as of [●], 2021, by and among Bakkt Pubco, VIH Sponsor and each of the other Persons party thereto from time to time, as may be amended, restated, supplemented or otherwise modified from time to time.

“Subsidiary” means, with respect to any Person, another Person of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or Controlled, directly or indirectly, by the first Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company,

 

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partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or Controlled, directly or indirectly, by the first Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control any managing director or general partner of such limited liability company, partnership, association or other business entity. For purposes hereof, references to a “Subsidiary” of the Company shall be given effect only at such times that the Company has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company. For the avoidance of doubt, the “Subsidiaries” of Bakkt Holding, Inc. will include the Company and its direct and indirect Subsidiaries.

“Substituted Member” means a Person that is admitted as a Member to the Company pursuant to Section 9.8.

“Tax Distribution” has the meaning set forth in Section 4.1(d).

“Tax Distribution Amount” means, with respect to any Fiscal Year, an amount equal to the aggregate amount of Tax Distributions with respect to such Fiscal Year that, if made on a pro rata basis in accordance with the Members’ Percentage Interests, would permit Bakkt Pubco to receive a Tax Distribution with respect to such Fiscal Year that is not less than the sum of (a) Bakkt Pubco’s U.S. federal, state, local and non-U.S. Income Tax liabilities plus (b) the amount necessary to satisfy Bakkt Pubco’s payment obligations pursuant to the Tax Receivable Agreement with respect to such Fiscal Year. The Managing Member may estimate this amount on a quarterly basis and reconcile the estimates as of the end of the Fiscal Year, as soon as reasonably practicable after the end of such Fiscal Year (or as soon as reasonably practicable after any event that subsequently adjusts the taxable income of such Fiscal Year), in each case, in the Managing Member’s reasonable discretion.    

“Taxes” means any federal, state, local or foreign income, sales and use, excise, franchise, real and personal property, gross receipt, capital stock, business and occupation, premium, disability, employment, payroll, or withholding tax or other tax, duty, fee, assessment or charge of any kind whatsoever in the nature of a tax imposed by any taxing authority, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, whether disputed or not, and any interest or penalties related to the foregoing.

“Tax Receivable Agreement” means the Tax Receivable Agreement dated as of or about the date hereof among the Company, Bakkt Pubco and the other parties from time to time party thereto, as amended from time to time.

“Tax Return” means any and all reports, returns (including information returns and claims for refunds), declarations, or statements relating to Taxes, including any schedule or attachment thereto and any amendment thereof filed or required to be filed with any governmental authority in connection with the determination, assessment, collection or payment of Taxes or in connection with the administration, implementation or enforcement of or compliance with any legal requirement relating to any Tax.

 

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“Taxable Year” means the Company’s accounting period for U.S. federal income tax purposes determined pursuant to Section 8.1(b).

“Termination Transaction” means any direct or indirect Transfer of all or any portion of the Managing Member’s interest in the Company in connection with, or the other occurrence of, (a) a merger, consolidation or other combination involving the Managing Member, on the one hand, and any other Person, on the other, or (b) a sale, lease, exchange or other transfer of all or substantially all of the assets of the Managing Member not in the ordinary course of its business, whether in a single transaction or a series of related transactions or (c) a direct or indirect Transfer of all or substantially all of the Managing Member’s interest in the Company; provided that, for the avoidance of doubt, “Termination Transaction” shall be deemed to exclude (x) any direct or indirect Transfers of Equity Securities of Bakkt Pubco by any stockholder or other holder thereof (other than any such Transfers pursuant to a combination transaction described in the foregoing clause (a)) and (y) any Exchange.

“Transaction Documents” has the meaning set forth in the Merger Agreement.

“Transfer” means, in respect of any Common Unit, any direct or indirect transfer of ownership by sale, exchange, assignment, pledge, encumbrance, Lien, gift, donation, grant or other conveyance or disposition of any kind, whether voluntary or involuntary, including conveyances or dispositions by operation of law or legal process or otherwise (and hereby expressly includes, with respect to a Member, any voluntary or involuntary: (a) appointment of a receiver, trustee, liquidator, custodian or other similar official for such Member or all or any part of such Member’s property under any Law relating to bankruptcy, insolvency, reorganization, liquidation or other relief of debtors, including Title 11 of the United States Code, as amended; (b) gift, donation, transfer by will or intestacy or other disposition, whether inter vivos or mortis causa; and (c) transfer or other disposition to a spouse or former spouse (including by reason of a separation agreement or divorce, equitable or community or marital property distribution, judicial decree or other court order relating to the division or partition of property between spouses or former spouses or other persons)).

“Treasury Regulations” means the income tax regulations promulgated under the Code and any corresponding provisions of succeeding regulations.

“Unit” means a Company Interest of a Member or an Assignee in the Company representing a fractional part of the Company Interests of all Members and Assignees; provided that any class or group of Units issued shall have the relative rights, powers and duties set forth in this Agreement and the Company Interest represented by such class or group of Units shall be determined in accordance with such relative rights, powers and duties.

“Upstream Securities” means Equity Securities of any type issued by Bakkt Pubco, including shares of common and preferred stock whether vested or unvested.

 

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“VIH Sponsor” means VPC Impact Acquisition Holdings Sponsor, LLC, a Delaware limited liability company.

“Warrant” means, as applicable, (i) that certain Warrant to Purchase Class B Voting Units, issued to Starbucks Corporation on February 19, 2020, or (ii) that certain Warrant to Purchase Class C Voting Units, issued to The Boston Consulting Group, Inc., on May 19, 2020.

ARTICLE II

ORGANIZATIONAL MATTERS

Section 2.1 Formation of Company. The Company was formed as a limited liability company on July 31, 2018 pursuant to the provisions of the Delaware Act.

Section 2.2 Limited Liability Company Agreement. The Members hereby execute this Agreement for the purpose of establishing the affairs of the Company and the conduct of its business in accordance with the provisions of the Delaware Act. The Members hereby agree that during the term of the Company set forth in Section 2.6 the rights and obligations of the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and the Delaware Act. To the extent that the rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Delaware Act, control. No provision of this Agreement shall be in violation of the Delaware Act and to the extent any provision of this Agreement is in violation of the Delaware Act, such provision shall be void and of no effect to the extent of such violation without affecting the validity of the other provisions of this Agreement; provided that where the Delaware Act provides that a provision of the Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect, the provisions of this Agreement shall in each instance control; provided further, that notwithstanding the foregoing, no contractual appraisal rights, whether pursuant to the Delaware Act or otherwise, including Section 18-210 of the Delaware Act, shall apply or be incorporated into this Agreement.

Section 2.3 Name. The name of the Company shall be “Bakkt Opco Holdings, LLC” and all Company business shall be conducted in that name or in such other names that comply with applicable law as the Managing Member, in its sole discretion may select from time to time. Subject to the Delaware Act, the Managing Member, in its sole discretion may change the name of the Company (and amend this Agreement to reflect such change) at any time and from time to time without the consent of any other Person. Notification of any such change shall be given to all of the Members.

Section 2.4 Purpose. The purpose and business of the Company shall be to engage in any business which may lawfully be conducted by a limited liability company formed pursuant to the Delaware Act.

Section 2.5 Principal Office; Registered Office.

(a) The principal office of the Company shall be at 5660 New Northside Drive, Atlanta, GA 30328, or such other place as the Managing Member may from time to time designate.

 

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The Company may maintain offices at such other place or places as the Managing Member deems advisable. Notification of any such change shall be given to all of the Members. The address of the registered office of the Company in the State of Delaware shall be 3411 Silverside Road, Tatnall Building No. 104, Wilmington, County of New Castle, Delaware 19810, and the registered agent for service of process on the Company in the State of Delaware at such registered office shall be United Agent Group Inc.

(b) The Managing Member in its sole discretion may take all action which may be necessary or appropriate (i) for the continuation of the Company’s valid existence as a limited liability company under the Laws of the State of Delaware (and of each other jurisdiction in which such existence is necessary to enable the Company to conduct the business in which it is engaged) and (ii) for the maintenance, preservation and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations. The Managing Member in its sole discretion may file or cause to be filed for recordation in the proper office or offices in each other jurisdiction in which the Company is formed or qualified, such certificates (including certificates of formation and fictitious name certificates) and other documents as are required by the applicable statutes, rules or regulations of any such jurisdiction or as are required to reflect the identity of the Members. The Managing Member in its sole discretion may cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of the officers, with all requirements necessary to qualify the Company to do business in any jurisdiction other than the State of Delaware.

Section 2.6 Term. The term of the Company commenced upon the filing of the Certificate in accordance with the Delaware Act and shall continue in existence until termination and dissolution thereof in accordance with the provisions of Article X. The existence of the Company shall continue until cancellation of the Certificate in the manner required by the Delaware Act.

Section 2.7 No State-Law Partnership. The Members intend that the Company not be a partnership (including, without limitation, a limited partnership) or joint venture, and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement, for any purposes other than as set forth in the last sentence of this Section 2.7, and neither this Agreement nor any other document entered into by the Company or any Member relating to the subject matter hereof shall be construed to suggest otherwise. The Members intend that the Company shall be treated as a partnership for U.S. federal and, if applicable, state or local income tax purposes, and that each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

Section 2.8 Fiscal Year. The Fiscal Year of the Company shall end on December 31 of each year or such other annual accounting period as may be established by the Managing Member.

Section 2.9 Powers of the Company. Subject to the limitations set forth in this Agreement, the Company will possess and may exercise all of the powers and privileges granted to it by the Delaware Act including the ownership and operation of the assets and other property contributed to the Company by the Members, by any other Law or this Agreement, together with all powers incidental thereto, so far as such powers are necessary or convenient to the conduct, promotion or attainment of the purpose of the Company set forth in Section 2.4.

 

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Section 2.10 Members; Reclassification; Admission of New Members. Each of the Persons listed in the books and records of the Company as a Member, as the same may be amended from time to time in accordance with this Agreement, by virtue of its execution of the Prior LLC Agreement or this Agreement, is admitted as a Member of the Company. The rights, duties and liabilities of the Members shall be as provided in the Delaware Act, except as is otherwise expressly provided herein, and the Members consent to the variation of such rights, duties and liabilities as provided herein. Subject to Section 9.8 with respect to Substituted Members, a Person may be admitted from time to time as a new Member with the written consent of the Managing Member in its sole discretion, provided, however, that upon exercise of a Warrant by the holder thereof and the execution and delivery a joinder to this Agreement pursuant to which such holder agrees to become a party to this Agreement with respect to the Equity Securities issued upon exercise of the Warrant, such holder shall be admitted to the Company as a “Member”. Each new Member shall execute and deliver to the Managing Member an appropriate supplement to this Agreement pursuant to which the new Member agrees to be bound by the terms and conditions of this Agreement, as it may be amended from time to time. A new Managing Member or substitute Managing Member may be admitted to the Company solely in accordance with Section 9.7.

Section 2.11 Resignation. No Member shall have the right to resign as a member of the Company other than following the Transfer of all Common Units owned by such Member in accordance with Article IX.

Section 2.12 Investment Representations of Members. Each Member hereby represents, warrants and acknowledges to the Company that: (a) such Member has such knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in the Company and is making an informed investment decision with respect thereto; (b) such Member is acquiring interests in the Company for investment only and not with a view to, or for resale in connection with, any distribution to the public or public offering thereof; and (c) the execution, delivery and performance of this Agreement have been duly authorized by such Member.

Section 2.13 Schedule of Members. The Company shall maintain a schedule, from time to time amended or supplemented, setting forth the name and address of each Member, and the number of Common Units or Equity Securities in the Company owned by such Member (such schedule, the “Schedule of Members”). The Schedule of Members, as amended and supplemented from time to time, shall be the definitive record of ownership of each Common Unit or other Equity Security in the Company. All Members acknowledge, and hereby agree, that the Schedule of Members is confidential to the Company and that each Member is only entitled to view the portion of the Schedule of Members representing his, her or its Company Interest. The Company shall be entitled to recognize the exclusive right of a Person registered on its records as the owner of Common Units or other Equity Securities in the Company for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Common Units or other Equity Securities in the Company on the part of any other Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware Act and this Agreement.

 

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ARTICLE III

CAPITAL CONTRIBUTIONS

Section 3.1 Common Units.

(a) Limited liability company interests in the Company shall be represented by Common Units, or such other securities of the Company, in each case as the Managing Member may establish in its discretion in accordance with the terms and subject to the restrictions hereof. As of immediately following the Effective Time, each Member shall hold the number of Common Units set forth opposite such Member’s name on the Schedule of Members.

(b) Each Member named on the Schedule of Members has made Capital Contributions or provided other consideration to the Company in exchange for the Units specified thereon. Each Member named on the Schedule of Members has delivered to the Company a properly executed Internal Revenue Service Form W-8 or W-9, as applicable. Each Member acknowledges and agrees that portions of this Agreement, including the Schedule of Members, may be redacted or information herein may otherwise be aggregated to prevent disclosure of confidential information.

(c) No Member shall be required or, permitted to (i) make any Capital Contribution other than in respect of the Merger Consideration as set forth on the Schedule of Members or (ii) loan any money or property to the Company or borrow any money or property from the Company.

(d) The Common Units resulting from the conversion, by virtue of the Merger, of Incentive Units (which are held by Bakkt Management) into the right to receive the Merger Consideration may be subject to vesting and forfeiture provisions pursuant to the Merger Agreement, the Prior Equity Incentive Plan and award agreements and notices issued thereunder. As set forth on the Schedule of Members, such Common Units shall initially be held by Bakkt Management, which shall hold such Common Units on behalf of Participants, but in the future all or a portion of such Common Units may be distributed from time to time directly to Participants, either in connection with the liquidation of Bakkt Management or otherwise. In the event of such a distribution of a Common Unit by Bakkt Management to a Participant, (i) the Participant shall automatically become a Member, (ii) the Schedule of Members shall be amended to reflect the addition of the Participant as a Member and the resulting adjustment in the number of Common Units held by Bakkt Management and the Participant, respectively, and (iii) the vesting and forfeiture provisions applicable to the distributed Common Units shall continue to apply to all such Participants.

Section 3.2 Authorization and Issuance of Additional Units.

(a) The Managing Member may not, without the prior written consent of a Required Interest, (i) create any new class or series of Units, or other Equity Securities of the Company, (ii) issue additional Units or other Equity Securities of the Company to any Member or

 

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Person (other than Units issued pursuant to Section 3.2(b) or Section 3.5 of this Agreement and Section 2.6 of the Merger Agreement), (iii) amend the privileges, preference, duties, liabilities, obligations and rights of any existing Units, or (iv) retire or redeem any previously issued Units or other Equity Securities of the Company (other than in connection with an Exchange or pursuant to Section 3.4 of this Agreement).

(b) Subject to the Exchange Agreement, the Company shall undertake all actions, including an issuance, reclassification, distribution, division or recapitalization, with respect to the Common Units, to maintain at all times a one-to-one ratio between the number of Common Units owned by Bakkt Pubco, directly or indirectly, and the number of outstanding shares of Class A Common Stock, disregarding, for purposes of maintaining the one-to-one ratio, (i) options, rights or securities of Bakkt Pubco issued under the New Equity Incentive Plan that are convertible into or exercisable or exchangeable for Class A Common Stock (except to the extent the net proceeds from such other securities, including any exercise or purchase price payable upon conversion, exercise or exchange thereof, has been contributed by Bakkt Pubco to the equity capital of the Company); provided that, in each of the foregoing cases, the issuance of Class A Common Stock in connection with the conversion, exercise or exchange of such options, rights or securities shall not be disregarded for purposes of this Section 3.2(b), (ii) treasury stock, (iii) preferred stock or other debt or equity securities (including warrants, options or rights) issued by Bakkt Pubco that are convertible into or exercisable or exchangeable for Class A Common Stock (except to the extent the net proceeds from such other securities, including any exercise or purchase price payable upon conversion, exercise or exchange thereof, has been contributed by Bakkt Pubco to the equity capital of the Company); provided that, in each of the foregoing cases, the issuance of Class A Common Stock in connection with the conversion, exercise or exchange of such preferred stock or other debt or equity securities (including such warrants, options or rights) shall not be disregarded for purposes of this Section 3.2(b), or (iv) the issuance and distribution to holders of shares of Class A Common Stock of rights to purchase Upstream Securities of Bakkt Pubco under a “poison pill” or similar shareholders rights plan (it being understood that upon exchange of Paired Interests for Class A Common Stock pursuant to the Exchange Agreement, such Class A Common Stock would be issued together with a corresponding right). In the event Bakkt Pubco issues, transfers or delivers from treasury stock or repurchases Class A Common Stock in a transaction not contemplated in this Agreement or the Exchange Agreement, Bakkt Pubco shall take all actions such that, after giving effect to all such issuances, transfers, deliveries or repurchases, the number of outstanding Common Units owned by Bakkt Pubco will equal on a one-for-one basis the aggregate number of outstanding shares of Class A Common Stock.

(c) Subject to the Exchange Agreement, the Company shall undertake all actions, including an issuance, a reclassification, distribution, division or recapitalization, with respect to the Common Units, to maintain at all times a one-to-one ratio between the number of outstanding shares of Class V Common Stock held by any Person and the number of Common Units owned by such Person. In the event Bakkt Pubco repurchases Class V Common Stock in a transaction not contemplated in this Agreement or the Exchange Agreement, Bakkt Pubco shall take all actions such that, after giving effect to all such repurchases, the number of outstanding shares of Class V Common Stock held by any Person will equal on a one-to-one basis the number of Common Units owned by such Person.

 

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(d) The Company shall not undertake any subdivision (by any Common Unit split, Common Unit distribution, reclassification, recapitalization or similar event) or combination (by reverse Common Unit split, reclassification, recapitalization or similar event) of the Common Units that is not accompanied by an identical subdivision or combination of each of the Class A Common Stock and Class V Common Stock (and the Company and Bakkt Pubco shall take all necessary action) so that at all times there is (x) a one-to-one ratio between the number of Common Units owned by Bakkt Pubco and the number of outstanding shares of Class A Common Stock (subject to the first sentence of Section 3.1(a)) (or such other Equity Security of Bakkt Pubco in which the Class A Common Stock may be converted or changed, as contemplated by Section 2.2 of the Exchange Agreement), and (y) a one-to-one ratio between the number of Common Units owned by Members other than Bakkt Pubco and the number of outstanding shares of Class V Common Stock.

(e) The Company shall only be permitted to issue additional Common Units or other Equity Securities in the Company to the Persons and on the terms and conditions provided for in the Merger Agreement and Section 3.1, this Section 3.2, and Section 3.5 of this Agreement. Subject to the foregoing, the Managing Member may cause the Company to issue additional Common Units authorized under this Agreement at such times and upon such terms as the Managing Member shall determine and the Managing Member shall, and is hereby authorized to, promptly amend this Agreement and the Schedule of Members as necessary in connection with the issuance of additional Common Units and admission of additional Members under this Section 3.2 without the requirement of any consent or acknowledgement of any other Member.

(f) At any time that Bakkt Pubco issues a share of Class A Common Stock or a share of other capital stock of Bakkt Pubco (other than Class V Common Stock and other than Class A Common Stock issued in connection with an Exchange (as defined in the Exchange Agreement)) for cash or other consideration (including capital stock or assets of another Person), the net proceeds received by Bakkt Pubco with respect to such share, if any, shall be concurrently transferred to the Company in exchange for a corresponding number of Common Units (determined based upon the Exchange Rate then in effect).

(g) If any such shares of Class A Common Stock issued by Bakkt Pubco, including any securities issued pursuant to the New Equity Incentive Plan or any other equity incentive program, are subject to vesting or forfeiture provisions, then the Common Units that are issued by the Company to Bakkt Pubco in connection therewith in accordance with the preceding provisions of this Article III shall be subject to vesting or forfeiture on the same basis; if any of such shares of Class A Common Stock vest or are forfeited, then a corresponding number of the Common Units (determined based upon the Exchange Rate then in effect) issued by the Company in accordance therewith shall automatically vest or be forfeited. Any cash or property held by Bakkt Pubco or the Company or on any of such Person’s behalf in respect of dividends paid on restricted shares of Class A Common Stock that fail to vest shall be returned to the Company upon the forfeiture of such restricted shares of Class A Common Stock. The Schedule of Members shall set forth the number of Common Units subject to forfeiture or vesting.

Section 3.3 Non-certificated Units; Certificates; Lost, Stolen or Destroyed Certificates; Registration and Transfer of Common Units.

 

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(a) Common Units shall not be certificated unless otherwise determined by the Managing Member. If the Managing Member determines that one or more Common Units shall be certificated, each such certificate shall be signed by or in the name of the Company and any officer designated by the Managing Member. Such certificate shall be in such form (and shall contain such legends) as the Managing Member may determine. Any or all of such signatures on any certificate representing one or more Common Units may be an electronic signature, engraved or printed, to the extent permitted by applicable Law.

(b) If Common Units are certificated, the Managing Member may direct that a new certificate representing one or more Common Units be issued in place of any certificate theretofore issued by the Company alleged to have been lost, stolen or destroyed, upon delivery to the Managing Member of an affidavit of the owner or owners of such certificate, setting forth such allegation. The Managing Member may require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Company a bond sufficient to indemnity it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.

(c) Upon surrender to the Company or the transfer agent of the Company, if any, of a certificate for one or more Common Units, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, in compliance with the provisions hereof, the Company shall issue a new certificate representing one or more Common Units to the Person entitled thereto, cancel the old certificate and record the transaction upon its books. Subject to the provisions of this Agreement, the Managing Member may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, Transfer and registration of Common Units.

Section 3.4 Purchase or Redemption of Shares of Class A Common Stock. If, at any time, any shares of Class A Common Stock are purchased or redeemed by Bakkt Pubco for cash, then the Managing Member shall cause the Company, immediately prior to such purchase or redemption of Class A Common Stock, to redeem a corresponding number of Common Units held by Bakkt Pubco, at an aggregate redemption price equal to the aggregate purchase or redemption price of the shares of Class A Common Stock being purchased or redeemed by Bakkt Pubco (plus any expenses related thereto) and upon such other terms as are the same for the shares of Class A Common Stock being purchased or redeemed by Bakkt Pubco.

Section 3.5 Bakkt Pubco Equity Plans. If at any time Bakkt Pubco issues one or more shares of Class A Common Stock in connection with the New Equity Incentive Plan or any other equity incentive program, whether such share or shares are issued upon exercise (including cashless exercise) of an option, settlement of a restricted stock unit, as restricted stock or otherwise, the Managing Member shall cause the Company to issue a corresponding number of Common Units, registered in the name of Bakkt Pubco (determined based upon the Exchange Rate then in effect); provided that Bakkt Pubco shall be required to contribute all (but not less than all) of the net proceeds (if any) received by Bakkt Pubco from or otherwise in connection with such issuance of one or more shares of Class A Common Stock, including the exercise price of any option exercised, to the Company.

 

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Section 3.6 Registered Members. The Company shall be entitled to recognize the exclusive right of a Person registered on its records as the owner of Common Units for all purposes and shall not be bound to recognize any equitable or other claim to or interest in Common Units on the part of any other Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the Delaware Act or other applicable Law.

Section 3.7 Capital Accounts. The Company shall maintain a separate Capital Account for each Member according to the rules of Treasury Regulations Section 1.704-1(b)(2)(iv). For this purpose, the Company may (in the discretion of the Managing Member), upon the occurrence of the events specified in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance with the rules of such regulation and Treasury Regulations Section 1.704-1(b)(2)(iv)(g) to reflect a revaluation of Company property.

Section 3.8 Negative Capital Accounts. No Member shall be required to pay to any other Member or the Company any deficit or negative balance which may exist from time to time in such Member’s Capital Account (including upon and after dissolution of the Company).

Section 3.9 No Withdrawal. No Person shall be entitled to withdraw any part of such Person’s Capital Contribution or Capital Account or to receive any Distribution from the Company, except as expressly provided herein.

Section 3.10 Loans From Members. Loans by Members to the Company shall not be considered Capital Contributions. For the avoidance of doubt, no Member may make a loan or advance funds to the Company without the consent of the Managing Member.

ARTICLE IV

DISTRIBUTIONS AND ALLOCATIONS

Section 4.1 Distributions.

(a) Subject to the provisions of the Delaware Act and the provisions of this Article IV, the Managing Member, in its sole discretion, may authorize Distributions to the Members, which Distributions shall be made pro rata in accordance with the Members’ respective Percentage Interests as of the record date of the Distribution designated by the Managing Member.

(b) Each Distribution pursuant to this Section 4.1 shall be made to the Persons shown on the Company’s books and records as Members as of the record date of such Distribution.

(c) Notwithstanding the foregoing provisions of Section 4.1(a), all amounts otherwise distributable pursuant to this Agreement (other than Section 4.1(d)) with respect to each unvested Unit shall be retained by the Company (collectively, the “Retained Amounts”). Prior to making any distribution pursuant to Section 4.1(a), the Company will distribute the Retained Amounts with respect to each previously unvested Unit that has become a vested Unit to the Holder of such Unit. Retained Amounts in respect of unvested Units that are forfeited prior to vesting shall be forfeited by the Holder of such Unit, and no distribution of such Retained Amounts in respect of such forfeited Units shall be made.

 

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(d) Notwithstanding any other provision of this Agreement to the contrary, to the fullest extent permitted by applicable Law and consistent with the Company’s obligations to its creditors as reasonably determined by the Managing Member, the Managing Member shall, to the extent of Available Cash, cause to be distributed to the Members with respect to their Common Units in proportion to their respective Percentage Interests on an annual basis an aggregate amount that equals the Tax Distribution Amount (each, a “Tax Distribution”); provided, however, that any portion of a Tax Distribution made with respect to the amounts described in clause (b) of the definition of Tax Distribution Amount may be distributed reasonably promptly before a payment is required to be made pursuant to the Tax Receivable Agreement. If, on the date of a Tax Distribution, there are insufficient funds on hand to distribute to the Members the full amount of the Tax Distributions to which such Members are otherwise entitled, distributions pursuant to this Section 4.1(d) shall be made to the Members to the extent of available funds in accordance with their Percentage Interests, and the Company shall make future Tax Distributions as soon as funds become available sufficient to pay the remaining portion of the Tax Distributions to which such Members are otherwise entitled. Notwithstanding the foregoing, the Managing Member may cause distributions under this Section 4.1(d) to be made on a quarterly basis based upon estimates of the Tax Distribution Amount (but only to the extent of the amounts described in clause (a) of the definition thereof), and reconcile such quarterly determinations with its determination of the total amount of Tax Distributions to be made for a Fiscal Year as soon as reasonably practicable after the end of such Fiscal Year (or as soon as reasonably practicable after any event that subsequently adjusts the taxable income of such Fiscal Year), in each case, in the Managing Member’s reasonable discretion.

Section 4.2 Allocations. After giving effect to the allocations set forth in Section 4.3, Net Profits and Net Losses (and to the extent necessary to achieve the resulting Capital Account balances described below, any allocable items of gross income, gain, loss and expense that would otherwise be includable in the computation of Net Profits and Net Losses) for each Taxable Year shall be allocated among the Members during such Taxable Year, in such a manner as shall cause the Capital Accounts of the Members (as adjusted to reflect all allocations set forth in Section 4.3 and all distributions through the end of such Taxable Year) to equal, as nearly as possible, (a) the amount such Members would receive if all assets of the Company on hand at the end of such Taxable Year were sold for cash equal to their Book Values, all liabilities of the Company were satisfied in cash in accordance with their terms (limited in the case of non-recourse liabilities to the Book Value of the property securing such liabilities), and all remaining or resulting cash (including any withheld amounts) were distributed to the Members under Section 10.2 minus (b) such Member’s share of Minimum Gain and Member Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical sale of assets.

Section 4.3 Special Allocations.

(a) Notwithstanding any other provision of Section 4.2 and Section 4.3, if there is a net decrease in Minimum Gain during any Taxable Year, each Member shall be allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in the manner and amounts provided in Treasury Regulations Sections 1.704-2(f)(6), (g)(2) and (j)(2)(i). For purposes of this Section 4.3, each Member’s Adjusted Capital Account shall be determined and the allocation of income or gain required hereunder shall be effected, prior to the

 

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application of any other allocations pursuant to Section 4.2 or Section 4.3 with respect to such Taxable Year. This Section 4.3(a) is intended to comply with the partnership Minimum Gain chargeback requirement in Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Notwithstanding the other provisions of Section 4.2 and Section 4.3 (other than clause (a) above), if there is a net decrease in Member Nonrecourse Debt Minimum Gain during any Taxable Year, any Member with a share of Member Nonrecourse Debt Minimum Gain at the beginning of such Taxable Year shall be allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in the manner and amounts provided in Treasury Regulations Section 1.704-2(i)(4) and (j)(2)(ii). For purposes of this Section 4.3 each Member’s Adjusted Capital Account balance shall be determined, and the allocation of income and gain required hereunder shall be effected, prior to the application of any other allocations pursuant to Section 4.2 or Section 4.3 other than Section 4.3(a) above, with respect to such Taxable Year. This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) Except as provided in Section 4.3(a) and Section 4.3(b) above, in the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by such Treasury Regulations, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible unless such deficit balance is otherwise eliminated pursuant to Section 4.3(a) and Section 4.3(b).

(d) No allocation of Net Loss shall be made to a Member if it would cause or increase an Adjusted Capital Account Deficit of such Member. Allocations of Net Loss that would be made to a Member but for this Section 4.3(d) shall instead be made to other Members pursuant to Section 4.2 to the extent not inconsistent with this Section 4.3(d).

(e) In the event any Member has an Adjusted Capital Account Deficit at the end of any Taxable Year, such Member shall be specially allocated items of Company gross income and gain in the amount of such excess as quickly as possible; provided, however, that an allocation pursuant to this Section 4.3(e) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided in this Section 4.3 have been tentatively made as if this Section 4.3(e) were not in this Agreement.

(f) Nonrecourse Deductions for any Taxable Year shall be allocated to the Members ratably among such Members based upon the number of Units held by each Holder.

(g) Member Nonrecourse Deductions for any Taxable Year shall be allocated 100% to the Member that bears the Economic Risk of Loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section 1.704-2(i). If more than one Member bears the Economic Risk of Loss with respect to a Member Nonrecourse Debt, Member Nonrecourse Deductions attributable thereto shall be allocated between or among such Members in accordance with the ratios in which they share such Economic Risk of Loss.

 

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(h) If any Holder of unvested Units forfeits all or a portion of such Units, such Holder shall be allocated items of loss and deduction in the year of such forfeiture in an amount equal to the portion of such Holder’s Capital Account attributable to such forfeited Units.

(i) To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or Section 743(b) is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of its Company Interest, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made in the event Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(j) Curative Allocation. The allocations set forth in Section 4.3(a)-(i) (other than Section 4.3(h)) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss, deduction or credit pursuant to this Section 4.3(j). Therefore, notwithstanding any other provision of this Article IV (other than the Regulatory Allocations), but subject to the Code and the Treasury Regulations, the Managing Member shall make such offsetting special allocations of Company income, gain, loss, deduction or credit in whatever manner it determines appropriate so that, after such offsetting allocations are made, each Member’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement. In exercising its discretion under this Section 4.3(j), the Managing Member shall take into account future Regulatory Allocations that, although not yet made, are likely to offset other Regulatory Allocations previously made.

Section 4.4 Tax Allocations.

(a) Except as provided in this Section 4.4, each item of income, gain, loss, deduction and credit of the Company for U.S. federal income tax purposes shall be allocated among the Members in the same manner as such items are allocated for book purposes under Section 4.2 and Section 4.3.

(b) The Members recognize that there may be a difference between the Book Value of a Company asset and the asset’s adjusted tax basis at the time of the property’s contribution or revaluation pursuant to this Agreement. In such a case, all items of tax depreciation, cost recovery, depletion, amortization, and gain or loss with respect to such asset shall be allocated among the Members to take into account the disparities between the Book Values and the adjusted tax basis with respect to such properties in accordance with the traditional method described in Treasury Regulation Section 1.704-3(b); provided, however, that any tax items not

 

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required to be allocated under Code Sections 704(b) or 704(c) shall be allocated in the same manner as such gain or loss would be allocated for book purposes under Section 4.2 and Section 4.3.

(c) All items of income, gain, loss, deduction and credit allocated to the Members in accordance with the provisions hereof and basis allocations recognized by the Company for U.S. federal income tax purposes shall be determined without regard to any election under Code Section 754 which may be made by the Company; provided, however, such allocations, once made, shall be adjusted as necessary or appropriate to take into account the adjustments permitted by Code Sections 734 and 743.

(d) Subject to Section 4.4(b), if any portion of taxable gain recognized from the disposition of property by the Company represents the “recapture” of previously allocated deductions by virtue of the application of Code Section 1(h)(1)(D), 1245 or 1250 (“Recapture Gain”), such Recapture Gain shall be allocated as follows:

(i) First, to the Members in proportion to the lesser of each Member’s (A) allocable share of the total taxable gain recognized from the disposition of such property and (B) share of depreciation or amortization with respect to such property (as determined in the manner provided under Treasury Regulations Sections 1.1245-1(e)(2) and (3)), until each such Member has been allocated Recapture Gain equal to such lesser amount.

(ii) Second, the balance of Recapture Gain shall be allocated among the Members whose allocable shares of total taxable gain from the disposition of such property exceed their shares of depreciation or amortization with respect to such property (as determined in the manner provided under Treasury Regulations Sections 1.1245-1(e)(2) and (3)), in proportion to their shares of total taxable gain (including Recapture Gain) from the disposition of such property; provided, however, that no Member shall be allocated Recapture Gain under this Section 4.4(d) in excess of the total taxable gain otherwise allocated to such Member from such disposition.

(iii) Unless otherwise required by the Code, any tax credits of the Company shall be allocated among the Members ratably based upon the number of Units held by each Holder.

(e) Any recapture of tax credits shall be allocated among the Members in the same ratio as the applicable tax credits were allocated to the Members.

(f) If, as a result of an exercise of a Warrant to acquire an interest in the Company, a Capital Account reallocation is required under Treasury Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall make corrective allocations pursuant to Treasury Regulations Section 1.704-1(b)(4)(x).

(g) For purposes of determining a Member’s proportional share of the Company’s “excess non-recourse liabilities” within the meaning of Treasury Regulations Section 1.752-3(a)(3), each Member’s interest in income and gain shall be in proportion to the Units held by such Member.

 

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(h) If there is a change in any Member’s Percentage Interests during any Fiscal Year, the principles of Code Section 706(d) shall apply in allocating items of income, gain, loss, deduction and credit for such Fiscal Year to account for the variation. For purposes of applying Code Section 706(d), the Managing Member may adopt any method or convention permitted under applicable Treasury Regulations.

(i) Allocations pursuant to this Section 4.4 are solely for purposes of U.S. federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Profits, Net Losses, Distributions or other Company items pursuant to any provision of this Agreement.

Section 4.5 Indemnification and Reimbursement for Payments on Behalf of a Member. If the Company is obligated to pay any amount to a Governmental Entity (or otherwise makes a payment to a Governmental Entity) that is specifically attributable to a Member (or former Member) or a Member’s (or former Member’s) status as such (including, without limitation, U.S. federal withholding taxes, any imputed underpayment as determined under Code Section 6225, state personal property taxes, and state unincorporated business taxes), but not including any such amounts attributable to a Member’s (or former Member’s) status as an employee of the Company or its Subsidiaries, then such Person shall indemnify the Company in full for the entire amount paid (including interest, penalties and related expenses). The Managing Member may offset Distributions to which a Person is otherwise entitled under this Agreement against such Person’s obligation to indemnify the Company under this Section 4.5. A Member’s obligation to indemnify the Company under this Section 4.5 shall survive the termination, dissolution, liquidation and winding up of the Company and the termination of such Member’s interest, and for purposes of this Section 4.5, the Company shall be treated as continuing in existence. The Company may pursue and enforce all rights and remedies it may have against each Member under this Section 4.5, including instituting a lawsuit to collect such contribution with interest calculated at a rate equal to the Base Rate plus three (3) percentage points per annum (but not in excess of the highest rate per annum permitted by law).

ARTICLE V

COVENANTS

Section 5.1 Records and Accounting.

(a) The Company shall keep, or cause to be kept, appropriate books and records with respect to the Company’s business, including all books and records necessary to provide any information, lists and copies of documents required to be provided pursuant to applicable laws.

(b) Except as limited by Section 5.1(c), each Member shall have the right to inspect at the offices of the Company, for a purpose reasonably related to such Member’s interest as a Member in the Company, upon reasonable written demand stating the purpose of such demand and at such Member’s own expense:

 

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(i) a copy of the Certificate and this Agreement and all amendments thereto; and

(ii) promptly after their becoming available, copies of the Company’s U.S. federal income tax returns for the three most recent years.

(c) The Managing Member may keep confidential from the Members, for such period of time as the Managing Member determines in its sole discretion, (i) any information that the Managing Member reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of which the Managing Member believes is not in the best interests of the Company, could damage the Company or its business or that the Company is required by law or by agreement with any third party to keep confidential, including information as to the Common Units held by any other Member. With respect to any schedules, annexes or exhibits to this Agreement, each Member (other than Bakkt Pubco) shall only be entitled to receive and review any such schedules, annexes and exhibits relating to such Member and shall not be entitled to receive or review any schedules, annexes or exhibits relating to any other Member (other than Bakkt Pubco).

Section 5.2 Transmission of Communications. Each Person that owns or Controls Units on behalf of, or for the benefit of, another Person or Persons shall be responsible for conveying any report, notice or other communication received from the Managing Member to such other Person or Persons.

Section 5.3 Governmental Consents and Filings. Each Member hereby represents and warrants that no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority or regulatory authority is required on the part of the Member in connection with the consummation of the transactions contemplated by this Agreement or to hold Units.

ARTICLE VI

MANAGEMENT

Section 6.1 Authority of the Managing Member.

(a) The Managing Member shall conduct, direct and exercise full control over all activities of the Company. All management powers over the business and affairs of the Company shall be vested in the Managing Member. The Managing Member shall have the power to bind or take any action on behalf of the Company, or to exercise in its sole discretion any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments, or other decisions) granted to the Company under this Agreement, or any other agreement, instrument or other document to which the Company is a party or by virtue of its holding the equity interests of any Subsidiary thereof.

(b) Notwithstanding any provision herein to the contrary, in connection with the performance of its duties as the Managing Member of the Company under this Agreement, the Members and the Managing Member acknowledge that the Managing Member will take action

 

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through the Bakkt Pubco Board and the officers of Bakkt Pubco, and that the members of the Bakkt Pubco Board and such officers of Bakkt Pubco will owe fiduciary duties to the stockholders of the Bakkt Pubco in respect of any such actions taken or omitted in connection with the performance of the Managing Member’s duties hereunder, provided, however that nothing in the foregoing shall abrogate or diminish the rights of the Holders of Common Units under this Agreement or applicable law.

(c) Without limiting the foregoing provisions of this Section 6.1, the Managing Member shall have the general power to manage or cause the management of the Company (which may be delegated to officers of the Company) to, directly or indirectly, undertake any of the following:

(i) to develop and prepare a business plan each year which will set forth the operating goals and plans for the Company;

(ii) to execute and deliver or to authorize the execution and delivery of contracts, deeds, leases, licenses, instruments of transfer and other documents on behalf of the Company;

(iii) to make any expenditures, to lend or borrow money, to assume or guarantee, or otherwise contract for, indebtedness and other liabilities, to issue evidences of indebtedness and to incur any other obligations;

(iv) to establish and enforce limits of authority and internal controls with respect to all personnel and functions;

(v) to engage attorneys, consultants and accountants for the Company;

(vi) to develop or cause to be developed accounting procedures for the maintenance of the Company’s books of account; and

(vii) to do all such other acts as shall be authorized in this Agreement.

Section 6.2 Actions of the Managing Member. The Managing Member may act (a) through meetings and written consents and (b) through any Person or Persons to whom authority and duties have been delegated pursuant to Section 6.5.

Section 6.3 Compensation. The Managing Member shall not be entitled to any compensation for services rendered to the Company in its capacity as Managing Member except as expressly provided in this Agreement.

Section 6.4 Expenses. The Members acknowledge and agree that the Managing Member’s Class A Common Stock will be publicly traded and therefore the Managing Member will have access to the public capital markets and that such status and the services performed by the Managing Member will inure to the benefit of the Company and all Members; therefore, the Managing Member shall be reimbursed by the Company for any reasonable out-of-pocket expenses incurred on behalf of or for the benefit of the Company, including all fees, expenses and

 

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costs associated with being a public company (including public reporting obligations, proxy statements, stockholder meetings, compensation and meeting costs of any board of directors or similar body, any salary, bonus, incentive compensation and other amounts paid to any Person including Affiliates of the Managing Member to perform services for the Company, stock exchange fees, transfer agent fees, SEC and FINRA filing fees and offering expenses, litigation costs and damages arising from litigation and accounting and legal costs) and maintaining its corporate existence. To the extent practicable, expenses incurred by the Managing Member on behalf of or for the benefit of the Company shall be billed directly to and paid by the Company. Notwithstanding the foregoing, the Company shall not pay or bear any Income Tax obligations of the Managing Member or any obligations of the Managing Member under the Tax Receivable Agreement; provided, that, for the avoidance of doubt, nothing under this Section 6.4 shall reduce the amount of any Tax Distribution to which the Managing Member is entitled pursuant to Section 4.1(d). Reimbursements pursuant to this Section 6.4 shall be in addition to any reimbursement to Bakkt Pubco as a result of indemnification pursuant to Section 11.2.

Section 6.5 Delegation of Authority. The Managing Member may, from time to time, delegate to one or more Persons such authority and duties as the Managing Member may deem advisable. In addition, the Managing Member may assign titles (including, without limitation, chief executive officer, president, principal, vice president, secretary, assistant secretary, treasurer or assistant treasurer) and delegate certain authority and duties to such Persons as the same may be amended, restated or otherwise modified from time to time. Any number of titles may be held by the same individual. The salaries or other compensation, if any, of such agents of the Company shall be fixed from time to time by the Managing Member. Any delegation pursuant to this Section 6.5 may be revoked at any time by the Managing Member in its sole discretion.

Section 6.6 Officers. Subject to Section 6.1 and pursuant to Section 6.5, the Managing Member hereby delegates the following authority and duties to the following respective officers of the Company:

(a) Appointment and Term of Office. The officers of the Company shall consist of a Chief Executive Officer, a Chief Financial Officer, a Chief Operating Officer and a Secretary, and there may be a Chairperson, a Vice Chairperson, one or more Presidents, one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer (and one or more Assistant Treasurers), and such other officers as may be appointed by the Managing Member. Each of such officers will not be subject to periodic elections by the Managing Member, but will hold office until the earlier of his or her death, resignation, retirement, disqualification or removal from office. Two or more offices may be held by the same Person.

(b) Removal. Any officer elected or appointed by the Managing Member may be removed at any time by the Managing Member, for or without cause. Such removal will be without prejudice to the contract rights pursuant to an employment or other agreement, if any, of the Person so removed. Election or appointment of an officer will not of itself create contract rights.

 

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(c) Vacancies. Subject to Section 6.1, whenever any vacancy shall occur in any office of any officer by death, resignation, removal, increase in the number of officers of the Company or otherwise, such vacancy shall be filled by the Managing Member.

(d) Compensation. Subject to Section 6.1, the compensation of all officers of the Company shall be determined by the Managing Member and may be altered by the Managing Member or such committee from time to time, except as otherwise provided by contract, and no officer shall be prevented from receiving such compensation by reason of the fact such officer is also a member of the Managing Member.

(e) Powers and Duties. Subject to Section 6.1, the officers of the Company shall have such titles and powers and perform such duties as shall be determined from time to time by the Managing Member and otherwise as shall customarily pertain to such offices. In its sole discretion, the Managing Member may choose not to fill any office for any period as it may deem advisable. All officers and other persons providing services to or for the benefit of the Company shall be subject to the supervision and direction of the Managing Member. No officer of the Company, in its capacity as such, shall be considered a Managing Member of the Company by agreement, as a result of the performance of its duties hereunder or otherwise.

Section 6.7 Purchase of Equity Securities. Subject to the provisions of this Agreement, the Managing Member may cause the Company to purchase or otherwise acquire Equity Securities, or may purchase or otherwise acquire Equity Securities on behalf of the Company. As long as such Equity Securities are owned by or on behalf of the Company, such Equity Securities will not be considered outstanding for any purpose.

Section 6.8 Limitation of Liability.

(a) Except as otherwise provided herein or in an agreement entered into by such Person and the Company, neither the Managing Member nor any of such Managing Member’s Affiliates shall be liable to the Company or to any Member for any act or omission performed or omitted by such Managing Member in its capacity as the Managing Member pursuant to authority granted to such Person by this Agreement; provided, that except as otherwise provided herein, such limitation of liability shall not apply to the extent the act or omission was attributable to such Person’s gross negligence, willful misconduct or knowing violation of Law or for any present or future breaches of any representations, warranties or covenants by such Person or its Affiliates contained herein or in Other Agreements with the Company. The Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and neither the Managing Member nor any of such Managing Member’s Affiliates shall be responsible for any misconduct or negligence on the part of any such agent appointed by the Managing Member (so long as such agent was selected in good faith and with reasonable care); provided that the foregoing shall not limit any responsibility the Managing Member may have as a result of a breach of fiduciary duties to its stockholders in connection with any such action. The Managing Member shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, and any act of or failure to act by the Managing Member in good faith reliance on such advice shall in no event subject the Managing Member thereof to liability to the Company or any Member.

 

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(b) Notwithstanding anything to the contrary herein, this Section 6.8 shall not affect the liability or duties of any officer of the Company or any of its Subsidiaries in his or her capacity as such.

ARTICLE VII

RIGHTS AND OBLIGATIONS OF MEMBERS

Section 7.1 Limitation of Liability of Members and Managing Member. Except as provided in this Agreement, in an agreement entered by such Person and the Company, or in the Delaware Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and no Member, including the Managing Member, shall be obligated personally for any such debts, obligation or liability solely by reason of being a Member or acting as a Managing Member of the Company or any combination thereof. Except as otherwise provided in this Agreement, a Member’s liability (in its capacity as such) for Company liabilities and Net Losses shall be limited to the payment of its respective Capital Contributions as and when due (which, in accordance with the definition of Capital Contribution, may be deemed to have been made) and other payments as expressly provided by the Agreement. If and to the extent a Member’s Capital Contribution shall be fully paid or deemed paid, such Member shall not, except as required by the express provisions of the Delaware Act regarding repayment of sums wrongfully distributed to Members, be required to make any further contributions; provided that a Member shall be required to return to the Company any Distribution made to it in clear and manifest accounting or similar error. The immediately preceding sentence shall constitute a compromise to which all Members have consented within the meaning of the Delaware Act. Notwithstanding anything contained herein to the contrary, the failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business and affairs under this Agreement or the Delaware Act shall not be grounds for imposing personal liability on the Members for liabilities of the Company.

Section 7.2 Lack of Authority. No Member in its capacity as such (other than the Managing Member, in its capacity as such) has the authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure on behalf of the Company, and except as expressly provided herein, the Common Units do not confer any rights upon the Members to participate in the affairs of the Company described in this Agreement. The Members hereby consent to the exercise by the Managing Member of the powers conferred on them by law and this Agreement. Except as expressly provided herein (and other than a Member’s voting rights in its capacity as a stockholder of Bakkt Holding, Inc.), no Member (other than the Managing Member) shall have any right to vote on any matter involving the Company, including with respect to any merger, consolidation, combination or conversion of the Company, or any other matter that a Member might otherwise have the ability to vote on or consent with respect to under the Delaware Act, at law, in equity or otherwise. The conduct, control and management of the Company shall be vested exclusively in the Managing Member. In all matters relating to or arising out of the conduct of the operation of the Company, the decision of the Managing Member shall be the decision of the Company. Except as required or permitted by Law, or expressly provided in the ultimate sentence of this Section 7.2 or by separate agreement with the Company, no Member who is not also the Managing Member (and acting in such capacity)

 

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shall take any part in the management or control of the operation or business of the Company in its capacity as a Member, nor shall any Member who is not also the Managing Member (and acting in such capacity) have any right, authority or power to act for or on behalf of or bind the Company in his or its capacity as a Member in any respect or assume any obligation or responsibility of the Company or of any other Member. Notwithstanding the foregoing, the Managing Member may from time to time appoint one or more Members as officers or employ one or more Members as employees, and such Members, in their capacity as officers or employees of the Company (and not, for clarity, in their capacity as Members of the Company), may take part in the control and management of the business of the Company to the extent such authority and power to act for or on behalf of the Company has been delegated to them by the Managing Member.

Section 7.3 No Right of Partition. No Member shall have the right to seek or obtain partition by court decree or operation of law of any Company property, or the right to own or use particular or individual assets of the Company.

Section 7.4 Members Right to Act. For matters that expressly require the approval of the Members (rather than the approval of the Managing Member on behalf of the Members), any action required or permitted to be taken by the Members pursuant to this Agreement shall be taken if the Required Interest provide a consent or ratification in writing. Any action required, required to be approved or permitted to be taken by the Managing Member pursuant to this Agreement may be taken or approved, as applicable, by the Managing Member acting pursuant to a writing which evidences its approval of or consent to such action.

Section 7.5 Outside Activities of the Managing Member. The Managing Member shall not, directly or indirectly, enter into or conduct any business or operations, other than in connection with (a) the ownership, acquisition and disposition of Common Units, (b) the management of the business and affairs of the Company and its Subsidiaries, (c) the operation of Bakkt Pubco as a reporting company with a class (or classes) of securities registered under Section 12 of the U.S. Securities Exchange Act of 1934, and listed on a securities exchange, (d) the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, (e) financing or refinancing of any type related to the Company, its Subsidiaries or their assets or activities, and (f) such activities as are incidental to the foregoing; provided, however, that, except as otherwise provided herein, the net proceeds of any financing raised by Bakkt Pubco pursuant to the preceding clauses (d) and (e) shall be made available to the Company, whether as Capital Contributions, loans or otherwise, as appropriate, and, provided further, that Bakkt Pubco may, in its sole and absolute discretion, from time to time hold or acquire assets in its own name or otherwise other than through the Company and its Subsidiaries so long as Bakkt Pubco takes commercially reasonable measures to ensure that the economic benefits and burdens of such assets are otherwise vested in the Company or its Subsidiaries, through assignment, mortgage loan or otherwise or, if it is not commercially reasonable to vest such economic interests in the Company or any of its Subsidiaries, the Members shall negotiate in good faith to amend this Agreement to reflect such activities and the direct ownership of assets by Bakkt Pubco. Nothing contained herein shall be deemed to prohibit Bakkt Pubco from executing any guarantee of indebtedness of the Company or its Subsidiaries.

 

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ARTICLE VIII

TAX MATTERS

Section 8.1 Preparation of Tax Returns.

(a) The Company shall arrange for the preparation and timely filing of all Tax Returns required to be filed by the Company. Each Member will, upon request, supply to the Company all pertinent information in its possession relating to the operations of the Company necessary to enable the Company’s Tax Returns to be prepared and filed. The Company will provide copies of each Member’s U.S. federal and applicable state tax Schedule K-1s within one hundred eighty (180) days after the end of each Taxable Year. Upon written request of a Member, the Company will provide within five (5) Business Days (i) estimated amounts to be included on such Member’s federal tax Schedule K-1 for the prior Taxable Year and (ii) a list of jurisdictions where the Company intends to file Tax Returns with respect to Income Taxes for the prior Taxable Year; provided, however, that the Company shall not be required to supply such estimated amounts and list of jurisdictions prior to ninety (90) days after the end of a Taxable Year.

(b) With respect to any taxable period during which ICE owns more than twenty-percent (20%) of the Common Units, the Managing Member shall provide to ICE a draft of any U.S. federal and other material Flow-Through Tax Return of the Company or any of its Subsidiaries for any Taxable Year beginning after December 31, 2019 (together with all supporting documentation) for its review and reasonable comment no later than fifteen (15) days prior to the date on which copies of each Member’s U.S. federal and applicable state tax Schedule K-1s are to be delivered pursuant to Section 8.1(a), and the Managing Member shall consider in good faith all reasonable comments received from ICE with respect thereto and shall not cause such Tax Return to be filed without the consent of ICE, such consent not to be unreasonably withheld, conditioned or delayed.

Section 8.2 Tax Elections. The Taxable Year shall be the Fiscal Year set forth in Section 2.8, unless the Managing Member shall determine otherwise in its sole discretion and in compliance with applicable laws. Except as otherwise expressly provided in this Agreement, the Managing Member shall, in its sole discretion, determine whether to make or revoke any available election pursuant to the Code; provided the Managing Member shall cause the Company to make an election pursuant to Code Section 754 for the taxable year that includes the date hereof. Each Member will upon request supply any information necessary to give proper effect to any such election.

Section 8.3 Tax Classifications. The Company shall be classified as a partnership for U.S. federal income tax purposes. Each Member agrees that it shall not: (a) treat, on such Member’s individual income Tax Returns, any item of income, gain, loss, deduction or credit relating to such Member’s interest in the Company in a manner inconsistent with the treatment of such item by the Company as reflected on the Schedule K-1 or other information statement furnished by the Company to such Member for use in preparing its income Tax Return; provided, however, in the event a Member has in place, or otherwise adopts, mark-to-market accounting, such accounting methodology shall not be deemed to be inconsistent with the treatment of such item by the Company as reflected on the Schedule K-1 or other information statement furnished by the Company to such Members; or (b) file any claim for refund relating to any such item based on, or which would result in, such inconsistent treatment.

 

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Section 8.4 Tax Controversies.

(a) ICE is hereby designated the Partnership Representative of the Company with respect to all Taxable Years ending on or prior to December 31, 2020, and Bakkt Pubco is hereby designated the Partnership Representative of the Company with respect to all Taxable Years beginning after December 31, 2020. In such capacity, the Partnership Representative is hereby authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Company funds for professional services reasonably incurred in connection therewith. Each Member agrees to cooperate with the Company and to do or refrain from doing any or all things reasonably requested by the Company with respect to the conduct of such proceedings. Each Member agrees to be bound by the decisions and elections made by the Partnership Representative with respect to such examinations, controversies or administrative or judicial proceedings. Each Member and former Member shall provide such information as shall reasonably be requested by the Partnership Representative in order to reduce the amount of the Company’s liability for any imputed underpayment in accordance with the procedures under Code Section 6225(c). The Partnership Representative shall keep the Managing Member or ICE, as applicable, fully informed of the progress of any examinations, audits or other proceedings, it being agreed that no Holder of Units (other than Bakkt Pubco and ICE) shall have any right to participate in any such examinations, audits or other proceedings. If an audit results in an imputed underpayment by the Company as determined under Code Section 6225, the Partnership Representative may make the election under Code Section 6226(a). If such an election is made, the Company shall furnish to each Member for the year under audit a statement reflecting the Member’s or former Member’s share of the adjusted items as determined in the notice of final partnership adjustment, and each such Member shall take such adjustment into account as required under Code Section 6226(b) and shall be liable for any related interest, penalty, addition to tax or additional amount. If such an election is not made, each person that was a Member of the Company during the taxable period to which such liability relates will indemnify and hold harmless the Company for such person’s allocable share of the amount of such tax liability, including any interest and penalties associated therewith, as reasonably determined by the Partnership Representative, in accordance with Section 4.5. The Company shall reimburse and indemnify the Partnership Representative for any expenses, including reasonable legal and accounting fees, claims, liabilities, losses and damages that the Partnership Representative incurs in connection with its obligations as the Partnership Representative. For the avoidance of doubt, any former Member’s obligation to provide information to the Partnership Representative pursuant to this Section 8.4 shall survive the termination of such Member’s interest.

(b) The Managing Member shall promptly notify ICE in writing of the receipt of any written proposed assessment or the commencement of any Tax audit, demand, claim or administrative or judicial proceeding that relates to the Taxes of, or Tax Returns required to be filed by, the Company or any of its Subsidiaries (a “Contest”), if such Contest relates to a taxable period beginning on or prior to the date hereof. ICE shall have the right, at the Company’s cost and expense (to the extent such costs and expenses are reasonable), to elect to control the conduct

 

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of such Contest; provided, that (i) ICE shall elect to control such Contest within thirty (30) days of receipt of notice thereof; (ii) if ICE elects to control such Contest, the Managing Member shall be entitled to participate (at the Company’s expense) in such Contest; and (iii) ICE shall not settle such Contest without first obtaining the Managing Member’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned). Notwithstanding anything in this Agreement to the contrary, the Managing Member shall have the exclusive right to control any Contest that ICE elects not to control or fails to elect to control within the time period set forth in Section 8.4(b)(i).

Section 8.5 Certain Actions. Notwithstanding anything to the contrary in this Agreement, none of Bakkt Pubco or any of its Affiliates (including the Company and its Subsidiaries) shall, without the prior written consent of ICE, (i) make, change or revoke any Tax election (other an election under Code Section 754) affecting a taxable period (or portion thereof) of the Company or its Subsidiaries ending on or before the date hereof, (ii) amend, refile or otherwise modify (or grant an extension of any applicable statute of limitations with respect to) any Tax Return of the Company or its Subsidiaries relating to a taxable period (or portion thereof) ending on or before the date hereof, (iii) file or request any ruling with respect to Taxes or Tax Returns of the Company or its Subsidiaries, or enter into any voluntary disclosure with any Governmental Entity regarding any Tax or Tax Returns of the Company or its Subsidiaries, in each case relating to a taxable period (or portion thereof) ending on or before the date hereof or (iv) take any action that results in any increased Tax liability or reduction of any Tax attributes of any Member in respect of a taxable period ending on or before the date hereof.

Section 8.6 Merger Agreement Conflicts. For the avoidance of doubt, to the extent there is any inconsistency between this Agreement and the provisions of Section 6.1 of the Merger Agreement, the provisions of Section 6.1 of the Merger Agreement shall control.

ARTICLE IX

RESTRICTIONS ON TRANSFER OF UNITS; CERTAIN TRANSFERS

Section 9.1 Transfers by Members.

(a) Except as otherwise agreed to in writing between the Managing Member and the applicable Member and reflected in the books and records of the Company or as otherwise provided in this Article IX, and subject to Section 9.2 and Article III of the Stockholders Agreement, no Member or Assignee thereof may Transfer all or any portion of its Common Units or other interest in the Company (or beneficial interest therein) without the prior consent of the Managing Member, which consent may be given or withheld, or made subject to such conditions (including the receipt of such legal opinions and other documents that the Managing Member may require) as are determined by the Managing Member, in each case in the Managing Member’s sole discretion, and which consent may be in the form of a plan or program entered into or approved by the Managing Member, in its sole discretion. Any such determination in the Managing Member’s sole discretion in respect of Common Units shall be final and binding. Such determinations need not be uniform and may be made selectively among Members, whether or not such Members are similarly situated, and shall not constitute the breach of any duty hereunder or otherwise existing at law, in equity or otherwise. Any purported Transfer of Common Units that

 

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is not in accordance with, or subsequently violates, this Agreement or Article III of the Stockholders Agreement shall be, to the fullest extent permitted by law, null and void. If a Member transfers all or a portion of its Common Units or other interest in the Company to a transferee in compliance with each of this Agreement and the Stockholders Agreement, the Member shall cause the transfer of an equal number of shares of Class V Common Stock to such transferee upon its admittance to the Company as a Member.

(b) Notwithstanding anything otherwise to the contrary in this Section 9.1, each Member may Transfer Common Units in an Exchange pursuant to, and in accordance with, the Exchange Agreement; provided that any such Exchange shall be effected in compliance with reasonable policies that the Managing Member may adopt or promulgate from time to time and advise the Members of in writing (including policies requiring the use of designated administrators or brokers) in its reasonable discretion; provided, further, that if such policies conflict with the terms of the Exchange Agreement, the provisions of the Exchange Agreement shall apply in lieu thereof to any Exchange to the extent of such conflict.

(c) Notwithstanding anything otherwise to the contrary in this Section 9.1, but subject to Section 9.2 and Article III of the Stockholders Agreement, (i) an individual Member may Transfer all or any portion of his or her Common Units in a Permitted Transfer and (ii) the Managing Member may implement other policies and procedures to permit the Transfer of Common Units by the other Members for personal estate planning purposes and any such Transfer effected in compliance with such policies and procedures shall require prior written notice to the Managing Member.

Section 9.2    Market Stand-Off. Notwithstanding anything in this Article IX to the contrary, during the period commencing on the date hereof and ending on the six (6) month anniversary of the date hereof (in respect of all other Members and Holders of Units who derive their chain of ownership through a Transfer from such other Member), the Members and all subsequent Holders of Units who derive their chain of ownership through a Transfer from a Member (each an “Owner”) shall not (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise Transfer or dispose of, directly or indirectly, any Common Units, including Common Units issued or delivered after the Closing pursuant to the Merger Agreement, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Common Units, (iii) establish or increase any put equivalent position or liquidation with respect to, or decrease a call equivalent position within the meaning of Section 15 of the Exchange Act with respect to, any Common Units, (iv) Transfer any Common Units in violation of the Stockholders Agreement (or which would be a violation of the Stockholders Agreement if such Owner were a party thereto in the capacity as a “Bakkt Equity Holder” or a “Permitted Transferee” thereof (each, as defined in the Stockholders Agreement)), or (v) publicly disclose the intention to do any of the foregoing, whether any such transaction described in clauses (i), (ii), (iii), (iv) or (v) above is to be settled by delivery of Common Units in cash or otherwise. The foregoing sentence shall not apply to the Transfer of any or all of the Common Units owned by a Member in a Permitted Transfer in accordance with each of this Agreement and the Stockholders Agreement; provided, however, that it shall be a condition to such Transfer (in addition to any other requirements hereunder) that the transferee executes and delivers

 

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to the Company an agreement stating that the transferee is receiving and holding the Common Units subject to this Section 9.2 and Article III of the Stockholders Agreement, and there shall be no further Transfer of such Common Units except in accordance with each of this Agreement and the Stockholders Agreement.

Section 9.3 Restricted Units Legend. The Units have not been registered under the Securities Act and, therefore, in addition to the other restrictions on Transfer contained in this Agreement, cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is then available. In the event that Units are ever certificated, each certificate evidencing Units and each certificate issued in exchange for or upon the Transfer of any Units (if such securities remain Units as defined herein after such Transfer) shall be stamped or otherwise imprinted with a legend in substantially the following form:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, BY AND AMONG THE COMPANY AND ITS MEMBERS AND AS MAY BE AMENDED AND MODIFIED FROM TIME TO TIME. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. SUCH RESTRICTIONS ARE BINDING ON THE TRANSFEREES OF SUCH UNITS.”

The Company shall imprint such legend on certificates (if any) evidencing Units. The legend set forth above shall be removed from the certificates (if any) evidencing any units which cease to be Units in accordance with the definition thereof.

Section 9.4 Further Restrictions.

(a) Common Units issued from time to time after the date of this Agreement, including Common Units issued under equity incentive plans of the Company or Bakkt Pubco (or upon settlement of awards granted under such plans), may be subject to such additional or other terms and conditions, including with regard to vesting, forfeiture, minimum retained ownership and Transfer, as may be agreed between Bakkt Pubco and the applicable Member and reflected in the books and records of the Company. Such requirements, provisions and restrictions need not be uniform and may be waived or released by Bakkt Pubco in its sole discretion with respect to all or a portion of the Common Units owned by any one or more Members at any time and from time to time, and shall not constitute the breach of any duty hereunder or otherwise existing at law, in equity or otherwise.

 

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(b) Notwithstanding any contrary provision in this Agreement, in no event may any Transfer of a Common Unit be made by any Member or Assignee if the Managing Member determines that:

(i) such Transfer is made to any Person who lacks the legal right, power or capacity to own such Common Unit;

(ii) except pursuant to an Exchange, such Transfer would require the registration of such transferred Common Unit pursuant to any applicable U.S. federal or state securities laws (including the Securities Act or the Exchange Act) or other non-U.S. securities laws (including Canadian provincial or territorial securities laws) or would constitute a non-exempt distribution pursuant to applicable provincial or state securities laws;

(iii) such Transfer would cause (A) all or any portion of the assets of the Company to (x) constitute “plan assets” (under ERISA, the Code or any applicable Similar Law) of any existing or contemplated Member, or (y) be subject to the provisions of ERISA, Section 4975 of the Code or any applicable Similar Law, or (B) Bakkt Pubco to become a fiduciary with respect to any existing or contemplated Member, pursuant to ERISA, any applicable Similar Law, or otherwise;

(iv) to the extent requested by the Managing Member, the Company does not receive such legal and/or tax opinions and written instruments (including copies of any instruments of Transfer and such Assignee’s consent to be bound by this Agreement as an Assignee) that are in a form satisfactory to the Managing Member, as determined in the Managing Member’s sole discretion; or

(v) the Managing Member reasonably determines that such Transfer would pose a material risk that the Company would be treated as a “publicly traded partnership” within the meaning of Code Section 7704 and the Treasury Regulations promulgated thereunder.

All determinations with respect to this Section 9.4 shall be made by the Managing Member in its sole discretion.

(c) To the fullest extent permitted by law, any Transfer in violation of this Article IX shall be deemed null and void ab initio and of no effect.

Section 9.5 Transfer. Prior to Transferring any Units (other than Transfers to the Company), the Transferring Holder of such Units shall cause the prospective transferee to be bound by this Agreement, and any other agreements executed by Holders of Units relating to such Units in the aggregate (including, without limitation, the Stockholders Agreement) (collectively, the “Other Agreements”) and to execute and deliver to the Company and the other Holders of Units counterparts of this Agreement and the applicable Other Agreements.

Section 9.6 Assignee’s Rights. Subject to Section 9.6, the transferee in any Permitted Transfer pursuant to this Article IX will be an assignee only (“Assignee”), and only will

 

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receive, to the extent transferred, the distributions and allocations of income, gain, loss, deduction, credit or similar item to which the Member which transferred its Common Units would be entitled, and such Assignee will not be entitled or enabled to exercise any other rights or powers of a Member, such other rights, and all obligations relating to, or in connection with, such interest remaining with the transferring Member. The transferring Member will remain a Member even if it has transferred all of its Common Units to one or more Assignees until such time as the Assignee(s) is admitted to the Company as a Member pursuant to Section 9.8.

Section 9.7 Admissions, Resignations and Removals.

(a) No Person may be admitted to the Company as an additional Managing Member or a substitute Managing Member without the prior written consent of each incumbent Managing Member, which consent may be given or withheld, or made subject to such conditions as are determined by each incumbent Managing Member, in each case in the sole discretion of each incumbent Managing Member. A Managing Member will not be entitled to resign as a Managing Member of the Company unless another Managing Member shall have been admitted hereunder (and not have previously been removed or resigned). The Members shall not have the right to remove or replace Bakkt Pubco or any other Managing Member.

(b) No Member will be removed or entitled to resign from being a Member of the Company except in accordance with Section 9.9. Any additional Managing Member or substitute Managing Member admitted as a Managing Member of the Company pursuant to this Section 9.7 is hereby authorized to, and shall, continue the Company without dissolution.

(c) Except as otherwise provided in Article X or the Delaware Act, no admission, substitution, resignation or removal of a Member will cause the dissolution of the Company. To the fullest extent permitted by law, any purported admission, resignation or removal that is not in accordance with this Agreement shall be null and void.

Section 9.8 Admission of Assignees as Substitute Members. An Assignee will become a Substituted Member only if and when each of the following conditions is satisfied:

(a) the Managing Member consents in writing to such admission, which consent may be given or withheld, or made subject to such conditions as are determined by the Managing Member, in each case in the Managing Member’s sole discretion;

(b) if required by the Managing Member, the Managing Member receives written instruments (including copies of any instruments of Transfer and such Assignee’s consent to be bound by this Agreement as a Substituted Member) that are in a form satisfactory to the Managing Member (as determined in its sole discretion);

(c) if required by the Managing Member, the Managing Member receives an opinion of counsel satisfactory to the Managing Member to the effect that such Transfer is in compliance with this Agreement and all applicable Law; and

 

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