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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM 8-K

 

 

 

CURRENT REPORT

Pursuant to Section 13 or Section 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): February 9, 2023

 

 

 

Compute Health Acquisition Corp.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-40001   85-3449307
(State or other jurisdiction of
incorporation or organization)
  (Commission File Number)   (IRS Employer
Identification Number)

 

1100 North Market Street

4th Floor

Wilmington, DE 19890

(Address of principal executive offices)

 

(212) 829-3500

Registrant’s telephone number, including area code

 

Not Applicable

(Former name or former address, if changed since last report)

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Units, each consisting of one share of Class A common stock, $0.0001 par value, and one-quarter of one Redeemable Warrant   CPUH.U   The New York Stock Exchange
Class A common stock, par value $0.0001 per share, included as part of the Units   CPUH   The New York Stock Exchange
Redeemable Warrants included as part of the Units, each exercisable for one share of Class A common stock for $11.50 per share   CPUH WS   The New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.

 

Emerging growth company

 

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

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Business Combination Agreement

 

Compute Health Acquisition Corp. (the “Company”) is a blank check company incorporated as a Delaware corporation on October 7, 2020 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. On February 9, 2023, the Company entered into a business combination agreement (the “Business Combination Agreement”) with Compute Health Corp., a Delaware corporation and direct, wholly-owned subsidiary of the Company (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company and direct, wholly-owned subsidiary of the Company (“Merger Sub II” and, together with Merger Sub I, the “Merger Subs”), Allurion Technologies Holdings, Inc., a Delaware corporation and direct, wholly-owned subsidiary of Allurion (as defined below) (“Pubco”), and Allurion Technologies, Inc., a Delaware corporation (“Allurion” and, collectively with the Company, the Merger Subs and Pubco, the “Parties”).

 

Pursuant to the Business Combination Agreement, and upon the terms and subject to the conditions set forth therein, the business combination will be effected in three steps: (a) the Company will merge with and into Pubco (the “CPUH Merger,” the closing of the CPUH Merger, the “CPUH Merger Closing” and the time at which the CPUH Merger becomes effective, the “CPUH Merger Effective Time”), with Pubco surviving (Pubco, in its capacity as the surviving company in the CPUH Merger, the “Surviving Corporation”) and, after giving effect to such merger, becoming the publicly-listed company and the sole owner of each Merger Sub, (b) at least three (3) hours following the consummation of the CPUH Merger, Merger Sub I will merge with and into Allurion (the “Intermediate Merger,” the closing of the Intermediate Merger, the “Intermediate Merger Closing” and the time at which the Intermediate Merger becomes effective, the “Intermediate Merger Effective Time”), with Allurion surviving as the surviving company in the Intermediate Merger (Allurion, in its capacity as the surviving company in the Intermediate Merger, the “Intermediate Surviving Corporation”) and, after giving effect to such merger, becoming a wholly-owned subsidiary of the Surviving Corporation and (c) thereafter, the Intermediate Surviving Corporation will merge with and into Merger Sub II (the “Final Merger,” and the time at which the Final Merger becomes effective, the “Final Merger Effective Time”) (the Final Merger, collectively with the CPUH Merger and the Intermediate Merger, the “Mergers” and, together with the other transactions contemplated by the Business Combination Agreement and the Ancillary Documents (as defined in the Business Combination Agreement), the “Proposed Transactions”), with Merger Sub II surviving as the surviving company in the Final Merger (Merger Sub II, in its capacity as the surviving company of the Final Merger, the “Surviving Subsidiary Company”) and, after giving effect to such merger, remaining a wholly-owned subsidiary of the Surviving Corporation.

 

Upon the closing of the Mergers (collectively, the “Closing”), the Surviving Corporation expects to change its name to “Allurion Technologies, Inc.” and trade on the New York Stock Exchange (the “NYSE”) under the ticker symbol “ALUR”. The date on which the Closing actually occurs is hereinafter referred to as the “Closing Date.”

 

The Business Combination Agreement and the transactions contemplated thereby were unanimously approved by the boards of directors of each of the Company, Pubco and Allurion.

 

In connection with the Proposed Transactions, holders of Class A common stock, $0.0001 par value, of the Company (“Company Class A Common Stock”) will have the right to redeem their shares of Company Class A Common Stock. Holders of Company Class A Common Stock that do not elect to redeem their shares of Company Class A Common Stock in connection with the Proposed Transactions will receive, at the CPUH Merger Closing, 1.420455 shares of common stock, par value $0.0001 per share, of Pubco (“Pubco Common Stock” and such exchange ratio, the “CPUH Exchange Ratio”) in exchange for each non-redeemed share of Company Class A Common Stock held by such holder.

 

Additionally, in connection with the CPUH Merger, the warrant adjustment provision under the Company’s warrant agreement, dated February 4, 2021, between the Company and Continental Stock Transfer & Trust Company, as warrant agent, is expected to be triggered, and the Parties have agreed to take certain actions, described below, with respect to the applicability of such provision to the Proposed Transactions.

 

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Consideration and Structure

 

The Business Combination Agreement provides that, among other things and upon the terms and subject to the conditions set forth therein, the following transactions will occur:

 

a)In connection with the CPUH Merger:

 

i.immediately prior to the CPUH Merger Effective Time, each unit of the Company, each consisting of one share of Company Class A Common Stock and one-quarter of one warrant of the Company (the “Company Warrants”) (each, a “Company Unit”), outstanding immediately prior to the CPUH Merger Effective Time will be automatically detached and the holder thereof will be deemed to hold one share of Company Class A Common Stock and one-quarter of one Company Warrant;

 

ii.immediately following the separation of the Company Units as described in clause (a)(i) above and at the CPUH Merger Effective Time, each share of Company Class A Common Stock issued and outstanding immediately prior to the CPUH Merger Effective Time (other than dissenting shares, shares that are redeemed in connection with the Proposed Transactions and shares held by the Company as treasury stock or held by any subsidiary of the Company, the treatment of which is described in the Business Combination Agreement) will automatically be canceled and extinguished and will be converted into the right to receive a number of shares of Pubco Common Stock equal to the CPUH Exchange Ratio (with the aggregate number of shares of Pubco Common Stock that each holder of Company Class A Common Stock will have a right to receive to be rounded down to the nearest whole share);

 

iii.immediately following the separation of the Company Units as described in clause (a)(i) above and at the CPUH Merger Effective Time, each Company Warrant outstanding immediately prior to the CPUH Merger Effective Time (after taking into account the CPUH Recapitalization (as defined below)) will cease to be a warrant with respect to Company Class A Common Stock and will be assumed by the Surviving Corporation and represent a number of shares of Pubco Common Stock calculated in accordance with the CPUH Exchange Ratio (subject to the outcome of the Consent Solicitation (as defined below));

 

iv.at the CPUH Merger Effective Time, each share of capital stock of Pubco issued and outstanding immediately prior to the CPUH Merger Effective Time shall be redeemed by Pubco for par value; and

 

v.notwithstanding clause (a)(ii) above, all shares of Company Class A Common Stock that are redeemed in connection with the Proposed Transactions will not be exchanged as described in clause (a)(ii) above but will instead, immediately prior to the CPUH Merger Effective Time, be canceled and cease to exist and will thereafter be redeemed for the applicable consideration, upon the terms and subject to the conditions and limitations, set forth in the Business Combination Agreement, the organizational documents of the Company, the Investment Management Trust Agreement, dated February 4, 2021, between the Company and Continental Stock Transfer & Trust Company and the S-4 Registration Statement (as defined below).

 

b)In connection with the Intermediate Merger, Pubco will issue, or reserve for issuance, up to 37,812,000 shares of Pubco Common Stock to the equityholders of Allurion, as follows:

 

i.immediately prior to the Intermediate Merger Effective Time, the outstanding principal and accrued but unpaid interest on the outstanding convertible unsecured promissory notes issued by Allurion pursuant to that certain Convertible Note Purchase Agreement, dated December 22, 2021, by and among Allurion and the investors party thereto (the “Allurion Convertible Notes”), will be converted into the applicable number of shares of common stock, par value $0.0001 per share, of Allurion (“Allurion Common Stock”) provided for under the terms of such Allurion Convertible Notes (collectively, the “Allurion Convertible Notes Conversion”), and will thereafter no longer be outstanding and will cease to exist, and each holder thereof will thereafter cease to have any rights with respect thereto. Immediately following the Allurion Convertible Notes Conversion, at the Intermediate Merger Effective Time, all shares of Allurion Common Stock issued in the Allurion Convertible Notes Conversion will be canceled and converted into the right to receive Pubco Common Stock as described in clause (b)(ii) below;

 

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ii.at the Intermediate Merger Effective Time, (A) each share of Allurion Common Stock (other than dissenting shares and shares held by Allurion as treasury stock or held by any subsidiary of Allurion, the treatment of which is described in the Business Combination Agreement) issued and outstanding as of immediately prior to the Intermediate Merger Effective Time (including shares of Allurion Common Stock resulting from the Allurion Convertible Notes Conversion or issued or issuable in connection with the Incremental Financing (as defined below)) will automatically be cancelled and extinguished and will be converted into the right to receive a number of shares of Pubco Common Stock equal to the Intermediate Merger Exchange Ratio (as defined below) and (B) each share of preferred stock, par value $0.0001 per share, of Allurion designated as Series A Preferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D-1 Preferred Stock, Series D-2 Preferred Stock and Series D-3 Preferred Stock (all such preferred stock, the “Allurion Preferred Stock” and, collectively with the Allurion Common Stock, the “Allurion Shares”) (other than dissenting shares and shares held by Allurion as treasury stock or held by any subsidiary of Allurion, the treatment of which is described in the Business Combination Agreement) issued and outstanding as of immediately prior to the Intermediate Merger Effective Time will automatically be cancelled and extinguished and will be converted into the right to receive a number of shares of Pubco Common Stock equal to (x) the aggregate number of shares of Allurion Common Stock that would be issued upon conversion of such issued and outstanding share of Allurion Preferred Stock into Allurion Common Stock based on the applicable conversion ratio immediately prior to the Intermediate Merger Effective Time multiplied by (y) the Intermediate Merger Exchange Ratio (in each case, with the aggregate number of shares of Pubco Common Stock that each holder of Allurion Shares will have a right to receive to be rounded down to the nearest whole share);

 

iii.at the Intermediate Merger Effective Time, each option to purchase shares of Allurion Common Stock (whether vested or unvested) (each, an “Allurion Option”) that is outstanding immediately prior to the Intermediate Merger Effective Time will cease to represent the right to purchase shares of Allurion Common Stock and will be converted automatically into an option (a “Rollover Option”) to purchase, on the same terms and conditions as were applicable to such Allurion Options immediately prior to the Intermediate Merger Effective Time, the number of shares of Pubco Common Stock (rounded down to the nearest whole share) equal to the number of shares of Allurion Common Stock subject to the corresponding Allurion Option immediately prior to the Intermediate Merger Effective Time multiplied by Intermediate Merger Exchange Ratio, and each such Rollover Option will have an exercise price per share of Pubco Common Stock (rounded up to the nearest whole cent) subject to such Rollover Option equal to (A) the exercise price per share of Allurion Common Stock applicable to the corresponding Allurion Option immediately prior to the Intermediate Merger Effective Time divided by (B) the Intermediate Merger Exchange Ratio;

 

iv.at the Intermediate Merger Effective Time, each restricted stock unit award denominated in shares of Allurion Common Stock (whether vested or unvested) (each, an “Allurion RSU Award”) that is outstanding immediately prior to the Intermediate Merger Effective Time will be assumed by Pubco and converted automatically into a restricted stock unit award denominated in shares of Pubco Common Stock, with same terms and conditions as were applicable to such Allurion RSU Awards immediately prior to the Intermediate Merger Effective Time, and relating to the number of shares of Pubco Common Stock equal to the product of (A) the number of shares of Allurion Common Stock underlying the corresponding Allurion RSU Award immediately prior to the Intermediate Merger Effective Time multiplied by (B) the Intermediate Merger Exchange Ratio (rounded down to the nearest whole share);

 

v.at the Intermediate Merger Effective Time, (A) each warrant to purchase Allurion Common Stock or Allurion Preferred Stock that is outstanding and unexercised as of immediately prior to the Intermediate Merger Effective Time will be converted into a warrant to acquire shares of Pubco Common Stock, in an amount and at an exercise price and subject to such terms and conditions, in each case, as set forth on an allocation schedule to be delivered by Allurion to the Company no later than five (5) business days prior to the Closing Date and (B) the Surviving Corporation will become the obligor under such warrants; and

 

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vi.at the Intermediate Merger Effective Time, each share of capital stock of Merger Sub I issued and outstanding immediately prior to the Intermediate Merger Effective Time will be converted into one share of common stock, par value $0.0001, of the Intermediate Surviving Corporation.

 

c)In connection with the Final Merger, at the Final Merger Effective Time, (i) each share of common stock, par value $0.0001 per share, of the Intermediate Surviving Corporation issued and outstanding immediately prior to the Final Merger Effective Time will be cancelled and will cease to exist and (ii) each limited liability company interest of Merger Sub II issued and outstanding immediately prior to the Final Merger Effective Time will remain outstanding as a limited liability company interest of the Surviving Subsidiary Company.

 

Intermediate Merger Exchange Ratio” means (a) the Aggregate Intermediate Merger Closing Merger Consideration (as defined below) divided by (b) the Fully Diluted Company Capitalization (as defined in the Business Combination Agreement); “Aggregate Intermediate Merger Closing Merger Consideration” means a number of shares of Pubco Common Stock equal to (a) 37,812,000 minus (b) (i) 1,500,000 multiplied by (ii) the Net Closing Cash Percentage; and “Net Closing Cash Percentage” means the percentage obtained by the following calculation: (a) $100,000,000 minus Net Closing Cash (as defined in the Business Combination Agreement) divided by (b) $30,000,000; provided that (i) if Net Closing Cash equals or exceeds $100,000,000, then the Net Closing Cash Percentage shall be deemed to be zero and (ii) the Net Closing Cash Percentage will not exceed 100%.

 

In addition, Allurion stockholders, holders of Allurion RSU Awards and vested Allurion Options (the “Eligible Allurion Equityholders”) will have the right to receive (i) an aggregate of 4,500,000 shares of Pubco Common Stock if, from the date the Surviving Corporation’s registration statement on Form S-1 with respect to the resale of any Pubco Common Stock issued pursuant to the PIPE Financing (as defined below) is declared effective by the Securities and Exchange Commission (the “SEC”) until five years after the Closing (the “Earnout Period”), the volume weighted average price (“VWAP”) of Pubco Common Stock on the NYSE, or any other national securities exchange on which the shares of Pubco Common Stock are then traded, is greater than or equal to $15.00 over any 20 trading days within any consecutive 30 trading day period, and (ii) an aggregate of an additional 4,500,000 shares of Pubco Common Stock (together with the shares referenced in clause (i), the “Contingency Shares”) in the aggregate if, during the Earnout Period, the VWAP of Pubco Common Stock on the NYSE, or any other national securities exchange on which the shares of Pubco Common Stock are then traded, is greater than or equal to $20.00 over any 20 trading days within any consecutive 30 trading day period. Additionally, in the event of a change of control of the Surviving Corporation (as described in the Business Combination Agreement), any unissued Contingency Shares will become payable to the Eligible Allurion Equityholders.

 

Conditions to Closing

 

Pursuant to the Business Combination Agreement, and upon the terms and subject to the conditions contained therein, the obligations of the Parties to consummate the Mergers are subject to the satisfaction or waiver of the following conditions:

 

a)the absence of any orders, laws or other legal restraints preventing the consummation of the Proposed Transactions (including the Closing);

 

b)the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended;

 

c)effectiveness of the registration statement on Form S-4 or such other applicable form (the “S-4 Registration Statement”) to be filed by Pubco in connection with the Proposed Transactions;

 

d)the approval and adoption of the Business Combination Agreement and transactions contemplated thereby by the requisite vote of (i) the Company’s stockholders, including the vote of the Company Class A Common Stock, voting as a separate class, and (ii) Allurion’s stockholders;

 

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e)receipt of approval for listing on the NYSE the shares of Pubco Common Stock to be issued in connection with the Proposed Transactions;

 

f)after giving effect to the Proposed Transactions, the Company having net tangible assets of at least $5,000,001 immediately prior to the CPUH Merger Effective Time;

 

g)as of immediately prior to the Intermediate Merger Closing and after the CPUH Merger Closing, (i) the amount of funds contained in the Company’s trust account (after reduction for the aggregate amount of payments made, or required to be made, in connection with redemptions by the holders of Company Class A Common Stock in connection with the Proposed Transactions, as contemplated by the Company’s organizational documents), plus (ii) the amount of funds available pursuant to the PIPE Financing, plus (iii) the amount of funds available to Allurion as of the Intermediate Merger Closing pursuant to the Revenue Interest Financing (as defined below), plus (iv) (A) the amount of funds available to Allurion as of the Intermediate Merger Closing pursuant to the Fortress Financing (as defined below) less (B) the amount payable to Runway Growth Finance Corp. in connection with the repayment and termination of the indebtedness under the Runway Loan (as defined below), plus (v) if Allurion raises more than $15,000,000 of net proceeds in connection with the Incremental Financing, an amount equal to the lesser of such excess and the amount of Allurion’s cash on hand immediately prior to the Intermediate Merger Closing, less (vi) the aggregate amount of certain unpaid fees, expenses, commissions or other amounts incurred by or on behalf of the Company, Allurion or their subsidiaries in connection with the Proposed Transactions shall be greater than or equal to $70,000,000 (the “Minimum Cash Condition”); provided that, if either the Company’s or Allurion’s expenses exceed the amount set forth on an agreed expenses schedule, the Minimum Cash Condition can only be asserted by Allurion or the Company, respectively; and

 

h)the consummation of the Fortress Financing and the Revenue Interest Financing.

 

Pursuant to the Business Combination Agreement, and upon the terms and subject to the conditions contained therein, the obligations of the Company and the Merger Subs to consummate the Mergers are subject to the satisfaction or waiver of the following conditions:

 

a)the accuracy of the representations and warranties of each of Allurion and Pubco as of the Closing;

 

b)the performance or compliance of each of Allurion and Pubco’s covenants in all material respects as of or prior to the Intermediate Merger Closing;

 

c)the absence of a Company Material Adverse Effect (as defined in the Business Combination Agreement);

 

d)the approval and adoption of the Business Combination Agreement and the transactions contemplated thereby by Allurion, as the sole stockholder of Pubco; and

 

e)receipt of a pay-off letter, in form and substance reasonably satisfactory to the Company, and related lien release documents, each in connection with the repayment and termination of all of Allurion’s indebtedness under its loan documents with Runway Growth Finance Corp. (the “Runway Loan”).

 

Pursuant to the Business Combination Agreement, and upon the terms and subject to the conditions contained therein, the obligations of Allurion and Pubco to consummate the Mergers are subject to the satisfaction or waiver of the following conditions:

 

a)the accuracy of the representations and warranties of each of the Company and each Merger Sub as of the Closing;

 

b)the performance or compliance of each of the Company and Merger Subs’ covenants in all material respects as of or prior to the Intermediate Merger Closing;

 

c)the absence of a CPUH Material Adverse Effect (as defined in the Business Combination Agreement); and

 

d)the approval and adoption of the Business Combination Agreement and the transactions contemplated thereby by the Company, as the (i) sole stockholder of Merger Sub I and (ii) sole member of Merger Sub II.

 

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Representations, Warranties and Covenants

 

The Parties have agreed to customary representations and warranties for transactions of this type. In addition, the Parties agreed to be bound by certain customary covenants for transactions of this type, including, among others, covenants with respect to (a) the conduct of Allurion, the Company and their respective subsidiaries (including Pubco and the Merger Subs) during the period between execution of the Business Combination Agreement and the Closing (the “Interim Period”), (b) mutually agreeing, after the date of the Business Combination Agreement, to the forms of post-closing organizational documents, a new equity incentive plan and new employee stock purchase plan of the Surviving Corporation, (c) not initiating any negotiations or entering into any agreements for certain alternative transactions, (d) Allurion’s preparation and delivery to the Company of certain financial statements of Allurion, (e) the preparation and filing by Pubco of the S-4 Registration Statement and Resale Registration Statement (as defined below) and the taking of certain other actions to obtain the requisite approval of Company stockholders of certain proposals regarding the Proposed Transactions and (f) the Parties’ agreement to use reasonable best efforts to take or cause to be taken all actions and things necessary to consummate the Mergers, including to obtain necessary governmental approvals.

 

Additionally, the Parties have agreed that (a) during the Interim Period, the Company will be permitted to borrow, on a non-interest bearing basis, from its sponsor, Compute Health Sponsor LLC, a Delaware limited liability company (“Sponsor”), or any of Sponsor’s affiliates in order to meet the Company’s reasonable funding requirements (the “Sponsor Loans”) and (b) at the Intermediate Merger Effective Time, (i) $2,500,000 of such Sponsor Loans outstanding as of the Closing Date will be repaid at the Closing from funds available in the Company’s trust account or from proceeds of the PIPE Financing or Revenue Interest Financing (or, if not so paid, by the Surviving Corporation), (ii) in the event the aggregate amount of Sponsor Loans outstanding as of the Closing Date is greater than $2,500,000 (such excess, the “Sponsor Loan Excess”), the Sponsor Loan Excess, up to an amount not to exceed $5,250,000 (the “Sponsor Loan Equity Conversion Cap”), outstanding as of the Closing Date will be converted into shares of Pubco Common Stock, equivalent in value to the amount of such Sponsor Loan Excess (capped at the Sponsor Loan Equity Conversion Cap), at a price per share of Pubco Common Stock of $7.04 (the “Sponsor Loan Equity Issuance”) and (iii) with respect to any Sponsor Loan Excess above the Sponsor Loan Equity Conversion Cap (such excess, the “Extinguishable Sponsor Loan Excess”), such Extinguishable Sponsor Loan Excess will be fully extinguished and forgiven, and the Company and the Surviving Corporation will have no obligation to pay such excess amounts; provided that Allurion may, in its sole discretion, pursuant to an election made prior to the Closing, repay on the Closing Date some or all of the Sponsor Loan Excess, up to the Sponsor Loan Equity Conversion Cap, in cash.

 

Further, the Parties have agreed that, as promptly as reasonably practicable following the date of the Business Combination Agreement, the Parties will, in accordance with terms, documentation and timing to be mutually agreed, solicit, and exercise reasonable best efforts to obtain, the approval of the registered holders of at least fifty percent (50%) of the then outstanding public Company Warrants to amend the public Company Warrants to permit the conversion or exchange of public Company Warrants for Pubco Common Stock at the CPUH Merger Effective Time at an exchange ratio mutually agreed upon by the Company, Pubco and Allurion (the “Consent Solicitation”). None of Parties may incur any out of pocket fees, expenses, commissions or other amounts in connection with obtaining this approval without the prior written consent of the other Parties (any such consent not to be unreasonably withheld, conditioned or delayed).

 

The Parties have also agreed that, from and after the date of the Business Combination Agreement, Allurion must use reasonable best efforts to obtain gross proceeds of at least $15 million of additional financing pursuant to one or more private sales of Allurion Common Stock (or securities convertible into Allurion Common Stock) (the “Incremental Financing”) by no later than April 30, 2023.

 

Additionally, the Parties have agreed that, during the Interim Period, and subject to applicable law, Allurion will use reasonable best efforts to obtain joinders to the Allurion Support Agreement (as defined below) from Allurion stockholders which, together with the Initial Allurion Supporting Stockholders, will represent the requisite number of Allurion Shares to obtain the requisite approval of the Proposed Transactions and termination of certain of Allurion’s related party contracts and accounts.

 

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Further, the Parties have agreed that, immediately following the CPUH Merger Closing, (a) the Surviving Corporation will have a classified board with Omar Ishrak serving as non-executive Co-Chairman and Lead Independent Director and Krishna Gupta serving as Co-Chairman and (b) such board will consist of seven members, with each of (i) Shantanu Gaur and Remus Capital having the right to nominate one director and one “independent” director for purposes of NYSE rules (each, an “Independent Director”), (ii) the Sponsor having the right to nominate one director and (iii) the Company having the right to nominate two Independent Directors, one of which will be designated by RTW in accordance with the RTW Side Letter (each, as defined below).

 

The representations, warranties, agreements and covenants of the parties set forth in the Business Combination Agreement will terminate at the Closing, except for those covenants and agreements that, by their terms, contemplate performance after the Closing.

 

Termination

 

The Business Combination Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including, without limitation, (a) by mutual written consent of the Company and Allurion; (b) by the Company or Allurion, if (i) the Closing has not occurred by August 7, 2023; (ii) if an applicable governmental entity has taken any final and non-appealable action permanently enjoining, restraining or otherwise prohibiting the Proposed Transactions; (iii) if the Company’s stockholder meeting to vote on the Mergers has concluded (including any adjournment or postponement thereof) and the approval of the Proposed Transactions by the requisite vote of the Company’s stockholders (including the vote of the Company Class A Common Stock, voting as a separate class), was not obtained; and (iv) if Allurion has not consummated the transactions contemplated by the Incremental Financing on or prior to April 30, 2023; (c) by the Company, if (i) Allurion or Pubco has breached any of its representations, warranties, agreements or covenants contained in the Business Combination Agreement and such failure or breach would render certain conditions precedent to the Closing incapable of being satisfied, subject to certain cure rights; (ii) approval of the Proposed Transactions by the requisite number of holders of Allurion Shares has not been obtained within forty-eight (48) hours following the date that the S-4 Registration Statement becomes effective; and (iii) Allurion does not deliver, within 30 days of the execution of the Business Combination Agreement, joinders to the Allurion Support Agreement constituting sufficient Allurion Shares to approve the Proposed Transactions; and (d) by Allurion, if the Company or either Merger Sub has breached any of its representations, warranties, agreements or covenants contained in the Business Combination Agreement and such failure or breach would render certain conditions precedent to the Closing incapable of being satisfied, subject to certain cure rights.

 

A copy of the Business Combination Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing description of the Business Combination Agreement and the Mergers does not purport to be complete and is qualified in its entirety by reference thereto.

 

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

 

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Other Agreements

 

The Business Combination Agreement contemplates the execution of various additional agreements and instruments, on or before the Closing, including, among others, the following:

 

Sponsor Support Agreement

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, the Company entered into a sponsor support agreement (the “Sponsor Support Agreement”) with Allurion, Pubco, the independent directors of the Company (as holders of Class B common stock, par value $0.0001 per share, of the Company (the “Class B Common Stock”)) (such independent directors, collectively, the “Additional Class B Holders”) and Sponsor (as the holder of the warrants to purchase Company Class A Common Stock purchased in a private placement contemporaneously with the initial public offering of the Company (the “Private Placement Warrants”) and a holder of Class B Common Stock). Pursuant to the Sponsor Support Agreement, upon the terms and subject to the conditions set forth therein, until the earlier of the CPUH Merger Effective Time and the date and time, if any, that the Business Combination Agreement is terminated, the Sponsor and the Additional Class B Holders agreed to (a) vote any shares of Class A Common Stock and Class B Common Stock that they own in favor of the proposals regarding the Proposed Transactions, (b) not transfer, sell, pledge or enter into any voting trusts with respect to any shares of Company Class A Common Stock, shares of Class B Common Stock, CPUH Public Warrants or Private Placement Warrants they they own, (c) solely with respect to the Sponsor, recapitalize its shares of Class B Common Stock and Private Placement Warrants into 2,088,327 shares of Class A Common Stock (the “Sponsor Recapitalization”), (d) solely with respect to each of the Additional Class B Holders, to recapitalize their shares of Class B Common Stock into Class A Common Stock (together with the Sponsor Recapitalization, the “CPUH Recapitalization”), (e) waive any adjustment to the conversion ratio set forth in the governing documents of the Company or any other anti-dilution or similar protection with respect to their respective shares of Class B Common Stock in connection with the transactions contemplated by the Business Combination Agreement and (f) vote against any transaction or series of transactions in which the Company would be acquired or acquire another person or business.

 

A copy of the Sponsor Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Sponsor Support Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Allurion Support Agreement

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, the Company entered into a stockholder support agreement (the “Allurion Support Agreement”) with Pubco, Allurion and certain Allurion stockholders (the “Initial Allurion Supporting Stockholders”). Pursuant to the Allurion Support Agreement, upon the terms and subject to the conditions set forth therein, each Initial Allurion Supporting Stockholder agreed, until the earlier of the Intermediate Merger Effective Time and the date and time, if any, that the Business Combination Agreement is terminated, within forty-eight (48) hours following the effectiveness of the S-4 Registration Statement, to execute and deliver a written consent with respect to all outstanding Allurion Shares held by such Initial Allurion Supporting Stockholder (the “Subject Allurion Shares”) approving the Business Combination Agreement and the transactions contemplated thereby. In addition to the foregoing, each Initial Allurion Supporting Stockholder agreed that, at any meeting of the holders of Allurion capital stock, each such Initial Allurion Supporting Stockholder will appear at the meeting, in person or by proxy, and cause its Subject Allurion Shares to be voted (a) to approve and adopt the Business Combination Agreement, the transactions contemplated thereby, and any other matters necessary or reasonably requested by Allurion for consummation of the Mergers; and (b) against any proposal that conflicts or materially impedes or interferes with, or would adversely affect or delay, the consummation of the transactions contemplated by the Business Combination Agreement.

 

The Allurion Support Agreement also prohibits the Initial Allurion Supporting Stockholders from, among other things, until the earlier of the Intermediate Merger Effective Time and the date and time, if any, that the Business Combination Agreement is terminated (i) transferring any of the Subject Allurion Shares or (ii) entering into any (A) option, commitment or other arrangement that would require the Initial Allurion Support Stockholders to transfer their Subject Allurion Shares, or (B) voting trust, proxy or other contract with respect to the voting or transfer of the Subject Allurion Shares. In addition, pursuant to the Allurion Support Agreement, each Initial Allurion Supporting Stockholder agreed not to (x) exercise any appraisal or dissenter’s rights relating to the Business Combination Agreement and the transactions contemplated thereby and (y) commence or participate in any claim or action against Allurion, either Merger Sub, the Company, Pubco or any of their respective affiliates relating to the negotiation, execution or delivery of the Allurion Support Agreement or the Business Combination Agreement.

 

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As described in the summary of the Business Combination Agreement, Allurion is obligated to use reasonable best efforts to obtain joinders to the Allurion Support Agreement from Allurion stockholders which, together with the Initial Allurion Supporting Stockholders, will represent the requisite number of Allurion Shares to approve the Proposed Transactions and termination of certain of Allurion’s related party contracts and accounts. The Company has a termination right if such support is not received within one month of the execution of the Business Combination Agreement. Allurion stockholders who execute joinders to the Allurion Support Agreement after the date of the Allurion Support Agreement will have their shares of Pubco Common Stock registered on a resale registration statement on Form S-1 (the “Resale Registration Statement”).

 

A copy of the Allurion Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference, and the foregoing description of the Allurion Support Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Non-Redemption Agreement

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, the Company entered into a Non-Redemption Agreement (the “Non-Redemption Agreement”) with Pubco, Allurion and Medtronic, Inc. (the “Medtronic”).

 

Pursuant to the Non-Redemption Agreement, upon the terms and subject to the conditions set forth therein, Medtronic agreed, for the benefit of the Company, Pubco and Allurion, not to, among other things, (a) redeem 700,000 shares of Class A Common Stock beneficially owned by Medtronic (the “Medtronic Shares”) and (b) sell, encumber or otherwise transfer the Medtronic Shares. In connection with these commitments from the Investor, the Company, Pubco and Allurion have agreed that, at the CPUH Merger Effective Time, each Medtronic Share will be canceled and converted into the right to receive 1.420455 shares of Pubco Common Stock.

 

The obligations of Medtronic pursuant to the Non-Redemption Agreement are subject to Medtronic and Allurion, or their respective designees, entering into a sales agency agreement that is satisfactory to Medtronic, in its sole discretion, so long as such sales agency agreement is substantially consistent with the memorandum of understanding previously entered into between Medtronic and Allurion.

 

None of the Company, Pubco, Allurion or Medtronic, either by the terms of the Non-Redemption Agreement or at any time in the future, are to be considered a “group” within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

The Company, Pubco and Allurion may enter into additional arrangements similar to the Non-Redemption Agreement described above.

 

A copy of the Non-Redemption Agreement is filed with this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by reference, and the foregoing description of the Non-Redemption Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Investor Rights Agreement

 

In connection with the Closing, Pubco, the Sponsor, certain stockholders of Allurion and certain other parties will enter into an Investor Rights and Lock-up Agreement (the “Investor Rights Agreement”). Pursuant to the Investor Rights Agreement, upon the terms and subject to the conditions set forth therein, each signatory thereto (other than Pubco) will be granted certain registration rights with respect to their respective shares of Pubco Common Stock.

 

The Investor Rights Agreement will also restrict the ability of certain parties thereto to transfer all or a portion of their respective shares of Pubco Common Stock (or any securities convertible into or exercisable or exchangeable for shares of Pubco Common Stock), subject to certain permitted transfers, for a period of either 18 months or 12 months following the Closing Date, as applicable. The foregoing lock-up restrictions shall not apply to (a) any shares of Pubco Common Stock purchased pursuant to the Subscription Agreements, (b) 100 shares of Pubco Common Stock held by each stockholder party thereto, (c) shares issued to the Sponsor in the Sponsor Loan Equity Issuance and (d) certain incremental shares of PIPE investors who are Allurion stockholders or holders of Allurion Convertible Notes.

 

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Additionally, pursuant to the Investor Rights Agreement, upon the terms and subject to the conditions set forth therein, following the Closing, the board of directors of the Surviving Corporation shall consist of seven (7) directors, a majority of which shall be “independent” directors for purposes of NYSE rules, and the following persons will have the following nominations rights with respect to the Surviving Corporation’s board of directors, subject to the limitations set forth in the Investor Rights Agreement: (i) one (1) director and one (1) Independent Director will be nominated by Shantanu Gaur; (ii) one (1) director and one (1) Independent Director will be nominated by Remus Capital; (iii) one (1) director will be nominated by the Sponsor; and (iv) two (2) Independent Directors will be nominated by Allurion (one of which shall be designated by RTW (as described below)).

 

A copy of the Investor Rights Agreement is filed with this Current Report on Form 8-K as Exhibit 10.4 and is incorporated herein by reference, and the foregoing description of the Investor Rights Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

PIPE Subscription Agreements

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, the Company and Pubco entered into subscription agreements with certain investors (the “Subscription Agreements” and such investors, the “Investors”), pursuant to which, upon the terms and subject to the conditions set forth therein, the Investors, among other things, have subscribed to purchase an aggregate of 5,386,695 shares of Pubco Common Stock (collectively, the “Subscriptions”) for a purchase price of $7.04 per share (other than as described in the RTW Side Letter below), for an aggregate purchase price of $37,922,363, which shares are to be issued immediately prior to the Intermediate Merger Effective Time (the “PIPE Financing”). The Company and Pubco may also enter into additional Subscription Agreements following the execution of the Business Combination Agreement. The obligations of each party to consummate the Subscriptions are conditioned upon, among other things, customary closing conditions and the consummation of the Proposed Transactions.

 

Omar Ishrak, chairman of the board of directors of the Company, has entered into a Subscription Agreement with an aggregate purchase price of $5,000,000.

 

A copy of the forms of Subscription Agreements are filed with this Current Report on Form 8-K as Exhibits 10.5 and 10.6 and are incorporated herein by reference, and the foregoing description of the Subscription Agreements and the transactions contemplated thereby does not purport to be complete and are qualified in their entirety by reference thereto.

 

RTW Side Letter

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, the Subscription Agreements and the Revenue Interest Financing Agreement, the Company, Pubco, Allurion and Merger Sub II entered into a side letter (the “RTW Side Letter”) with RTW Master Fund, Ltd. an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (collectively, “RTW”), pursuant to which, among other things, upon the terms and subject to the conditions set forth therein, (a) the Company and Pubco have agreed not to enter into Subscription Agreements with Investors on more favorable or advantageous terms than those included in the Subscription Agreements to be entered into by and among the Company, Pubco and RTW, (b) Pubco has agreed to convert up to 50% of the consideration RTW pays to Pubco in connection with the PIPE Financing by forfeiting Pubco Common Stock into financing provided by RTW to the Company pursuant to an Additional Revenue Interest Financing Agreement (as defined in the RTW Side Letter), (c) Pubco has agreed to issue up to an additional 1,000,000 shares of Pubco Common Stock to RTW (the “Additional RTW Shares”), with (i) 250,000 of such Additional RTW Shares to be issued at the Closing and not subject to any contingencies and (ii) 750,000 of such Additional RTW Shares to be issued based on the minimum cash of the Company as of immediately prior to the Intermediate Merger Effective Time (to be determined linearly, based on no Additional RTW Shares being issuable if such minimum cash is equal to or greater than $100 million and 750,000 Additional RTW Shares being issuable if such minimum cash is $70 million), (d) Pubco has agreed that RTW shall have the right to designate one Independent Director to the Surviving Corporation’s board of directors and (e) Pubco has agreed to create the board position of lead independent director, who shall serve as chair or co-chair of the Surviving Corporation’s board of directors, and who will initially be Omar Ishrak. As a result of the issuance by Pubco of the Additional RTW Shares, the effective share price of Pubco Common Stock offered to RTW could range from $6.30 per share to $4.79 per share.

 

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A copy of the RTW Side Letter is filed with this Current Report on Form 8-K as Exhibit 10.7 and is incorporated herein by reference, and the foregoing description of the RTW Side Letter and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Revenue Interest Financing

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, Allurion and RTW entered into an agreement, pursuant to which, among other things, upon the terms and subject to the conditions set forth therein, RTW agreed to provide financing to Allurion at the Closing in the initial amount of $40 million in exchange for a revenue interest in Allurion’s current and future products and digital solutions (the “Revenue Interest Financing Agreement” and such financing, the “Revenue Interest Financing”).

 

A copy of the Revenue Interest Financing Agreement is filed with this Current Report on Form 8-K as Exhibit 10.8 and is incorporated herein by reference, and the foregoing description of the Revenue Interest Financing Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Bridging Agreement

 

On February 9, 2023, in connection with the execution of the Business Combination Agreement, Allurion and Fortress Credit Corp. (or one of its affiliates) (“Fortress”) entered into a Bridging Agreement (the “Bridging Agreement”), pursuant to which, among other things, upon the terms and subject to the conditions set forth therein, Fortress agreed to execute a Credit and Guaranty Agreement on the Closing Date pursuant to which Fortress will provide Allurion with a term loan in an amount of up to $60 million in order to refinance Allurion’s indebtedness under the Runway Loan (the “Fortress Financing”) substantially concurrently with the consummation of the Mergers.

 

In connection with the Bridging Agreement, Pubco has agreed to issue up to an additional 1,000,000 shares of Pubco Common Stock to Fortress (the “Additional Fortress Shares”), with (i) 250,000 of such Additional Fortress Shares to be issued at the Closing and not subject to any contingencies and (ii) 750,000 of such Additional Fortress Shares to be issued based on the minimum cash of the Company as of immediately prior to the Intermediate Merger Effective Time (to be determined linearly, based on no Additional Fortress Shares being issuable if such minimum cash is equal to or greater than $100 million and 750,000 Additional Fortress Shares being issuable if such minimum cash is $70 million).

 

A copy of the Bridging Agreement is filed with this Current Report on Form 8-K as Exhibit 10.9 and is incorporated herein by reference, and the foregoing description of the Bridging Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Each of the Sponsor Support Agreement, the Allurion Support Agreement, the forms of Subscription Agreements, the Non-Redemption Agreement, the Investor Rights Agreement, the RTW Side Letter, the Revenue Interest Financing Agreement and the Bridging Agreement (collectively, the “Ancillary Documents”) contains representations, warranties or covenants that the respective parties made to each other as of the date of the Ancillary Documents or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Ancillary Documents. The Ancillary Documents are being filed to provide investors with information regarding its terms. It is not intended to provide any other factual information about the parties to the Ancillary Documents. In particular, the representations, warranties, covenants and agreements contained in the Ancillary Documents, which were made only for purposes of the Ancillary Documents and as of specific dates, were solely for the benefit of the parties to the Ancillary Documents, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Ancillary Documents instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors, security holders and reports and documents filed with the SEC. Investors and security holders are not third-party beneficiaries under the Ancillary Documents and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Ancillary Documents. In addition, the representations, warranties, covenants and agreements and other terms of the Ancillary Documents may be subject to subsequent waiver or modification.

 

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Loan Note

 

On February 9, 2023, the Company entered into a Loan Note Instrument (the “Loan Note”) with the Sponsor, pursuant to which the Sponsor, in its sole and absolute discretion, may loan to the Company up to $4,750,000 for (i) costs reasonably related to the Company’s consummation of an initial business combination and (ii) deposits into the trust account of the Company in connection with the extension of the deadline for the Company to consummate its initial business combination from February 9, 2023 to August 9, 2023. The Loan Note does not bear any interest.

 

The Loan Note is payable on the earliest to occur of (i) the date on which the Company consummates its initial business combination and (ii) the date that the winding up of the Company is effective.

 

The Loan Note is subject to customary events of default, including failure by the Company to pay the principal amount due pursuant to the Loan Note within five business days of the maturity date and certain bankruptcy events of the Company.

 

A copy of the Loan Note is filed with this Current Report on Form 8-K as Exhibit 10.10 and is incorporated herein by reference, and the foregoing description of the Loan Note and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by reference thereto.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K with respect to the Loan Note is incorporated by reference into this Item 2.03.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K with respect to the Sponsor Support Agreement, the Allurion Support Agreement, the Subscription Agreements, the RTW Side Letter, the Bridging Agreement, the issuance of Pubco Common Stock in connection with the transactions contemplated by the Business Combination Agreement, the CPUH Recapitalization, the Subscription Agreements, the RTW Side Letter and the Bridging Agreement is incorporated by reference herein. The (a) shares of Class A Common Stock issuable pursuant to the CPUH Recapitalization and (b) shares of Pubco Common Stock issuable pursuant to (i) the Subscription Agreements, (ii) the RTW Side Letter, (iii) the Bridging Agreement and (iv) to signatories to joinders to the Allurion Support Agreement will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, as applicable.

 

Item 7.01 Regulation FD Disclosure.

 

On February 9, 2023, Allurion and the Company issued a joint press release (the “Press Release”) announcing the entry into the Business Combination Agreement. The Press Release is attached to this Current Report as Exhibit 99.1.

 

Attached as Exhibit 99.2 is the investor presentation, relating to the Proposed Transactions and the PIPE Financing, as described in this Current Report on Form 8-K.

 

The information in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information contained in this Item 7.01, including Exhibit 99.1 and Exhibit 99.2.

 

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Important Information About the Proposed Transactions and Where to Find It

 

This Current Report on Form 8-K relates to a proposed business combination between the Company, Allurion and Pubco. Pubco intends to file the S-4 Registration Statement with the SEC, which will include a document that serves as a proxy statement and prospectus of the Company and Pubco and a full description of the terms of the Proposed Transactions. The proxy statement/prospectus will be mailed to the Company’s stockholders as of a record date to be established for voting at the Company’s stockholders’ meeting relating to the Proposed Transactions. The Company and Pubco may also file other documents regarding the Proposed Transactions with the SEC. This Current Report on Form 8-K does not contain all of the information that should be considered concerning the Proposed Transaction and is not intended to form the basis of any investment decision or any other decision in respect of the Proposed Transactions. The Company’s stockholders and other interested persons are advised to read, when available, the S-4 Registration Statement, including the proxy statement/prospectus and any amendments thereto, and all other relevant documents filed or that will be filed with the SEC in connection with the Proposed Transactions, as these materials will contain important information about Allurion, the Company and the Proposed Transactions. The S-4 Registration Statement, including the proxy statement/prospectus, and other documents that are filed with the SEC, once available may be obtained without charge at the SEC’s website at www.sec.gov, or by directing a written request to Compute Health Acquisition Corp., 1100 North Market Street, 4th Floor, Wilmington, Delaware 19890.

 

NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS CURRENT REPORT ON FORM 8-K, PASSED UPON THE MERITS OR FAIRNESS OF THE PROPOSED TRANSACTIONS OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS CURRENT REPORT ON FORM 8-K. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.

 

Participants in the Solicitation

 

The Company, Allurion, Pubco, certain stockholders of the Company and certain of the Company’s, Allurion’s and Pubco’s respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from the stockholders of the Company with respect to the Proposed Transactions. A list of the names of such persons and information regarding their interests in the proposed transaction will be contained in the S-4 Registration Statement and proxy statement/prospectus, when available. Stockholders, potential investors and other interested persons should read the S-4 Registration Statement and proxy statement/prospectus carefully when they become available and before making any voting or investment decisions. Free copies of these documents may be obtained from the sources indicated above, when available.

 

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Cautionary Statement Regarding Forward-Looking Statements

 

This Current Report on Form 8-K contains certain “forward-looking statements” within the meaning of the federal U.S. securities laws with respect to the Company, Allurion and the Proposed Transactions between them, the benefits of the proposed transaction, the amount of cash the proposed transaction will provide the Company and Allurion, the anticipated timing of the proposed transaction, the services and markets of Allurion, the expectations regarding future growth, results of operations, performance, future capital and other expenditures, competitive advantages, business prospects and opportunities, future plans and intentions, results, level of activities, performance, goals or achievements or other future events. These forward-looking statements generally are identified by words such as “anticipate,” “believe,” “expect,” “may,” “could,” “will,” “potential,” “intend,” “estimate,” “should,” “plan,” “predict,” or the negative or other variations of such statements. They reflect the current beliefs and assumptions of the Company’s management and Allurion’s management and are based on the information currently available to the Company’s management and Allurion’s management. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual results or developments to differ materially from those expressed or implied by such forward-looking statements, including but not limited to: (i) the risk that the proposed transaction may not be completed in a timely manner or at all, which may adversely affect the price of the Company’s securities; (ii) the risk that the Proposed Transactions may not be completed by the Company’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by the Company; (iii) the failure to satisfy the conditions to the consummation of the Proposed Transactions, including, but not limited to, the approval of the Business Combination Agreement by the stockholders of the Company and the stockholders of Allurion, the satisfaction of the minimum cash amount and the receipt of certain governmental and regulatory approvals; (iv) changes to the proposed structure of the Proposed Transaction that may be required, or considered appropriate, as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the Proposed Transactions; (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the Business Combination Agreement; (vi) the ability to complete the PIPE Financing, the Fortress Financing and the Revenue Interest Financing in connection with the Proposed Transactions; (vii) the Company’s ability to acquire sufficient sources of funding if and when needed; (viii) the effect of the announcement or pendency of the Proposed Transactions on Allurion’s business relationships, operating results and business generally; (ix) risks that the Proposed Transactions disrupt current plans and operations of Allurion; (x) the ability of the Surviving Corporation to implement business plans, forecasts and other expectations after the completion of the Proposed Transactions, and identify and realize additional opportunities; (xi) significant risks, assumptions, estimates and uncertainties related to the projected financial information with respect to Allurion; (xii) the outcome of any legal proceedings that may be instituted against Allurion, Pubco or the Company following the announcement of the Business Combination Agreement or the Proposed Transactions; (xiii) Allurion’s ability to commercialize current and future products and services and create sufficient demand among health care providers and patients; (xiv) Allurion’s ability to successfully complete current and future preclinical studies and clinical trials of the Allurion Gastric Balloon and any other future product candidates; (xv) Allurion’s ability to obtain market acceptance of the Allurion Gastric Balloon as safe and effective; (xvi) Allurion’s ability to cost-effectively sell existing and future products through existing distribution arrangements with distributors and/or successfully adopt a direct sales force as part of a hybrid sales model that includes both distributors and a direct sales effort; (xvii) Allurion’s ability to obtain regulatory approval or clearance in the U.S. and certain non-U.S. jurisdictions for current and future products and maintain previously obtained approvals and/or clearances in those jurisdictions where Allurion’s products and services are currently offered; (xviii) Allurion’s ability to accurately forecast customer demand and manufacture sufficient quantities of product that patients and health care providers request; (xix) Allurion’s ability to successfully compete in the highly competitive and rapidly changing regulated industries in which Allurion operates, and effectively address changes in such industries, including changes in competitors’ products and services and changes in the laws and regulations that affect Allurion; (xx) Allurion’s ability to successfully manage future growth and any future international expansion of Allurion’s business and navigate the risks associated with doing business internationally; (xxi) Allurion’s ability to obtain and maintain intellectual property protection for its products and technologies and acquire or license intellectual property from third parties; (xxii) the ability of Allurion to retain key executives; (xxiii) the ability to obtain and maintain the listing of the Company’s or the Surviving Corporation’s securities on a national securities exchange; (xxiv) Allurion’s ability to properly train physicians in the use of the Allurion Gastric Balloon and other services it offers in its practices; (xxv) the risk of downturns in the market and Allurion’s industry including, but not limited to, as a result of the COVID-19 pandemic; (xxvi) fees, costs and expenses related to the Proposed Transactions; (xxvii) the risk that the collaboration agreement with the Investor will not be signed and that the parties will not achieve the expected benefits, incremental revenue and opportunities from such arrangement; (xxviii) the failure to realize anticipated benefits of the Proposed Transactions or to realize estimated pro forma results and underlying assumptions, including with respect to estimated redemptions by the Company’s public stockholders; and (xxix) sanctions against Russia, reductions in consumer confidence, heightened inflation, production disruptions in Europe, cyber disruptions or attacks, higher natural gas costs, higher manufacturing costs and higher supply chain costs. The foregoing list of factors is not exclusive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the Company’s Form S-1 (File No. 333-252245) and Annual Report on Form 10-K for the year ended December 31, 2021 and the S-4 Registration Statement and proxy statement/prospectus, when available, and other documents filed by the Company and Pubco from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date on which they are made, and none of Allurion, Pubco or the Company assume any obligation to update or revise any forward-looking statements or other information contained herein, whether as a result of new information, future events or otherwise. You are cautioned not to put undue reliance on these forward-looking statements. None of the Company, Allurion or Pubco gives any assurance that the Company, Allurion or Pubco will achieve its expectations.

 

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Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.   Description
2.1   Business Combination Agreement, dated as of February 9, 2023, by and among Compute Health Acquisition Corp., Compute Health Corp., Compute Health LLC, Allurion Technologies Holdings, Inc. and Allurion Technologies, Inc.
10.1   Sponsor Support Agreement, dated as of February 9, 2023, by and among Compute Health Acquisition Corp., Compute Health Sponsor LLC, Allurion Technologies Holdings, Inc., Allurion Technologies, Inc. and the independent directors of the Compute Health Acquisition Corp.
10.2   Stockholder Support Agreement, dated as of February 9, 2023, by and among Compute Health Acquisition Corp., Allurion Technologies Holdings, Inc., Allurion Technologies, Inc. and certain stockholders of Allurion Technologies, Inc.
10.3   Non-Redemption Agreement, dated as of February 9, 2023, by and among Compute Health Acquisition Corp., Allurion Technologies, Inc., Pubco and Medtronic, Inc.
10.4††   Form of Investor Rights Agreement.
10.5††   Form of PIPE Subscription Agreement.
10.6††   Form of PIPE Subscription Agreement.
10.7††   RTW Side Letter, dated as of February 9, 2023, by and among Compute Health Acquisition Corp., Allurion Technologies Holdings, Inc., Allurion Technologies, Inc., Compute Health LLC, RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd. and RTW Venture Fund Limited.
10.8††   Revenue Interest Financing Agreement, dated as of February 9, 2023, by and among Allurion Technologies, Inc., RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd. and RTW Venture Fund Limited.
10.9††   Bridging Agreement, dated as of February 9, 2023, by and among Allurion Technologies, Inc. and Fortress Credit Corp.
10.10   Loan Note Instrument, dated as of February 9, 2023, by and between Compute Health Acquisition Corp. and Compute Health Sponsor LLC.
99.1   Joint Press Release, dated February 9, 2023
99.2   Investor Presentation
104   Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request.
†† Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request.

 

15

 

 

SIGNATURE

 

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

 

  Compute Health Acquisition Corp.
       
  By: /s/ Joshua Fink
    Name:  Joshua Fink
    Title: Co-Chief Executive Officer

 

Dated: February 9, 2023

 

 

16

 

Exhibit 2.1

 

BUSINESS COMBINATION AGREEMENT

 

BY AND AMONG

 

COMPUTE HEALTH ACQUISITION CORP.,

 

COMPUTE HEALTH CORP.,

 

COMPUTE HEALTH LLC,

 

ALLURION TECHNOLOGIES HOLDINGS, INC.

 

AND

 

ALLURION TECHNOLOGIES, INC.

 

DATED AS OF FEBRUARY 9, 2023

 

 

 

 

TABLE OF CONTENTS

 

    Page
     
Article 1  
CERTAIN DEFINITIONS  
     
Section 1.1 Definitions 5
Section 1.2 Certain Defined Terms 23
     
Article 2  
THE MERGERS  
     
Section 2.1 Closing Transactions 26
Section 2.2 Contingency Consideration 30
Section 2.3 Closing of the Transactions Contemplated by this Agreement 32
Section 2.4 Allocation Schedule 32
Section 2.5 Treatment of Company Equity Awards 33
Section 2.6 Treatment of Company Warrants and Company Convertible Notes 34
Section 2.7 Closing Actions and Deliverables 34
Section 2.8 Withholding 37
Section 2.9 Dissenting Shares 37
     
Article 3  
REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANY and pubco  
     
Section 3.1 Organization and Qualification 38
Section 3.2 Capitalization 38
Section 3.3 Authority 39
Section 3.4 Subsidiaries 40
Section 3.5 Financial Statements; Undisclosed Liabilities 41
Section 3.6 Consents and Requisite Governmental Approvals; No Violations 42
Section 3.7 Permits 42
Section 3.8 Material Contracts 42
Section 3.9 Absence of Changes 44
Section 3.10 Litigation 45
Section 3.11 Compliance with Applicable Law 45
Section 3.12 Employee Benefit Plans 45
Section 3.13 Environmental Matters 47
Section 3.14 Intellectual Property 47
Section 3.15 Labor and Employment Matters 49
Section 3.16 Insurance 50
Section 3.17 Tax Matters 50
Section 3.18 Brokers 52
Section 3.19 Real and Personal Property 52
Section 3.20 Transactions with Affiliates 53
Section 3.21 Data Privacy and Security 53

 

i

 

 

Section 3.22 Compliance with International Trade & Anti-Corruption Laws 54
Section 3.23 Information Supplied 54
Section 3.24 Regulatory Compliance 55
Section 3.25 Government Contracts 57
Section 3.26 Investigation; No Other Representations 57
Section 3.27 PPP and Similar Loans 57
Section 3.28 Financing Arrangements 57
Section 3.29 Business Activities 57
Section 3.30 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES 58
     
Article 4  
REPRESENTATIONS AND WARRANTIES RELATING TO THE CPUH PARTIES  
     
Section 4.1 Organization and Qualification 58
Section 4.2 Authority 58
Section 4.3 Consents and Requisite Governmental Approvals; No Violations 59
Section 4.4 Brokers 59
Section 4.5 Information Supplied 59
Section 4.6 Capitalization 60
Section 4.7 SEC Filings 60
Section 4.8 Trust Account 61
Section 4.9 Transactions with Affiliates 61
Section 4.10 Litigation 62
Section 4.11 Compliance with Applicable Law 62
Section 4.12 Merger Sub Activities 62
Section 4.13 Internal Controls; Listing; Financial Statements 62
Section 4.14 No Undisclosed Liabilities 63
Section 4.15 Employee Matters 63
Section 4.16 Tax Matters 63
Section 4.17 Investigation; No Other Representations 64
Section 4.18 PIPE Investment 64
Section 4.19 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES 65
     
Article 5  
COVENANTS  
     
Section 5.1 Conduct of Business of the Company and Pubco 65
Section 5.2 Efforts to Consummate 69
Section 5.3 Confidentiality and Access to Information 70
Section 5.4 Public Announcements 71
Section 5.5 Tax Matters 72
Section 5.6 Exclusive Dealing 73
Section 5.7 Preparation of Registration Statement/Proxy Statement and Resale Registration Statement 74
Section 5.8 CPUH Stockholder Approval 75
Section 5.9 Merger Sub and Pubco Approvals 75
Section 5.10 Conduct of Business of CPUH 76

 

ii

 

 

Section 5.11 CPUH Borrowings; Indebtedness 77
Section 5.12 Stock Exchange Listing 78
Section 5.13 Trust Account 78
Section 5.14 Company Stockholder Approval 78
Section 5.15 CPUH Indemnification; Directors’ and Officers’ Insurance 79
Section 5.16 Company Indemnification; Directors’ and Officers’ Insurance 80
Section 5.17 Post-Closing Directors and Officers 81
Section 5.18 PIPE Subscriptions 82
Section 5.19 Pubco Governing Documents, New ESPP and New Equity Incentive Plan 83
Section 5.20 Expense Statement 83
Section 5.21 Transaction Litigation 83
Section 5.22 Employee Stock Purchase Plan 84
Section 5.23 Section 16 Matters 84
Section 5.24 Company Support Agreements 84
Section 5.25 CPUH Warrantholder Approval 84
Section 5.26 Incremental Financing 85
     
Article 6  
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT  
     
Section 6.1 Conditions to the Obligations of the Parties 85
Section 6.2 Other Conditions to the Obligations of the CPUH Parties 86
Section 6.3 Other Conditions to the Obligations of the Company 87
     
Article 7  
TERMINATION  
     
Section 7.1 Termination 88
Section 7.2 Effect of Termination 89
     
Article 8  
MISCELLANEOUS  
     
Section 8.1 Non-Survival 89
Section 8.2 Entire Agreement; Assignment 89
Section 8.3 Amendment 89
Section 8.4 Notices 90
Section 8.5 Governing Law 91
Section 8.6 Fees and Expenses 91
Section 8.7 Construction; Interpretation 91
Section 8.8 Exhibits and Schedules 92
Section 8.9 Parties in Interest 92
Section 8.10 Severability 92
Section 8.11 Counterparts; Electronic Signatures; Effectiveness 92
Section 8.12 Knowledge of Company; Knowledge of CPUH 92
Section 8.13 No Recourse 93
Section 8.14 Extension; Waiver 93
Section 8.15 Waiver of Jury Trial 93
Section 8.16 Submission to Jurisdiction 94
Section 8.17 Remedies 94
Section 8.18 Trust Account Waiver 94
Section 8.19 Legal Representation 95
     
EXHIBITS  
   
Exhibit A Form of Investor Rights Agreement A-1
Exhibit B Sponsor Support Agreement B-1
Exhibit C Company Support Agreement C-1

 

iii

 

 

BUSINESS COMBINATION AGREEMENT

 

This BUSINESS COMBINATION AGREEMENT (this “Agreement”), dated as of February 9, 2023, is made by and among Compute Health Acquisition Corp., a Delaware corporation (“CPUH”), Compute Health Corp., a Delaware corporation (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company (“Merger Sub II” and together with Merger Sub I, the “Merger Subs”), Allurion Technologies Holdings, Inc., a Delaware corporation (“Pubco”), and Allurion Technologies, Inc., a Delaware corporation (the “Company”). CPUH, the Merger Subs, Pubco and the Company shall be referred to herein from time to time collectively as the “Parties” (and each a “Party”). Capitalized terms used herein have the meanings set forth in Section 1.1 and 1.2.

 

WHEREAS, (a) CPUH is a blank check company incorporated as a Delaware corporation on October 7, 2020 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses, (b) each Merger Sub is, as of the date of this Agreement, a wholly-owned Subsidiary of CPUH that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents and (c) Pubco is, as of the date of this Agreement, a wholly-owned Subsidiary of the Company that was formed for purposes of consummating the transactions contemplated by this Agreement and the Ancillary Documents;

 

WHEREAS, pursuant to the Governing Documents of CPUH, CPUH is required to provide an opportunity for its stockholders to have their outstanding shares of Class A Common Stock redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the CPUH Stockholder Approval;

 

WHEREAS, as of the date of this Agreement, CPUH’s initial stockholders, including Compute Health Sponsor LLC, a Delaware limited liability company (the “Sponsor”), collectively own 21,562,500 shares of Class B Common Stock;

 

WHEREAS, on the Closing Date, upon the terms and conditions set forth herein and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), (i) CPUH will merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the surviving company in the CPUH Merger (Pubco, in its capacity as the surviving company of the CPUH Merger, the “Surviving Corporation”) and, after giving effect to such merger, becoming the sole owner of each Merger Sub, (ii) Merger Sub I will merge with and into the Company (the “Intermediate Merger”), with the Company surviving as the surviving company in the Intermediate Merger (the Company, in its capacity as the surviving company of the Intermediate Merger, the “Intermediate Surviving Corporation”) and, after giving effect to such merger, becoming a wholly-owned subsidiary of the Surviving Corporation and (iii) the Intermediate Surviving Corporation will merge with and into Merger Sub II (the “Final Merger ” and, collectively with the CPUH Merger and the Intermediate Merger, the “Mergers”), with Merger Sub II surviving as the surviving company in the Final Merger (Merger Sub II, in its capacity as the surviving company of the Final Merger, the “Surviving Subsidiary Company”) and, after giving effect to such merger, remaining a wholly-owned subsidiary of the Surviving Corporation and (a) each Company Share will be converted into the right to receive the Merger Consideration Per Fully Diluted Share, (b) each Company Option will be converted into an option to purchase shares of Pubco Common Stock, (c) each Company RSU Award will be converted into a restricted stock unit award denominated in shares of Pubco Common Stock, (d) each Company Warrant will be converted into a warrant to acquire a number of shares of Pubco Common Stock in an amount and at an exercise price as set forth on the Allocation Schedule and (e) each Company Convertible Note will ultimately be converted into the right to receive shares of Pubco Common Stock, in each case, on the terms and subject to the conditions set forth in this Agreement;

 

1

 

 

WHEREAS, (i) concurrently with the execution of this Agreement, CPUH is entering into subscription agreements (collectively, the “Subscription Agreements”) with Pubco and certain investors, pursuant to which, among other things, the Investors are agreeing to subscribe for and purchase, and Pubco is agreeing to issue and sell to the Investors, a number of shares of Pubco Common Stock as set forth in each applicable Subscription Agreement in exchange for an aggregate purchase price of approximately $37.9 million, on the terms and subject to the conditions set forth therein and (ii) CPUH and Pubco may enter into similar agreements with certain investors following the execution of this Agreement and prior to the Intermediate Merger Closing (the investors referred to in the preceding clause (i) and this clause (ii), collectively, the “Investors” and such equity financing referenced in the preceding clause (i) and this clause (ii), collectively, hereinafter referred to as the “PIPE Financing”);

 

WHEREAS, concurrently with the execution of this Agreement, CPUH, Pubco and a Pre-Closing CPUH Stockholder are entering into a non-redemption agreement (the “Non-Redemption Agreement”), pursuant to which, among other things, subject to the terms and conditions set forth therein, such Pre-Closing CPUH Stockholder is agreeing, for the benefit of CPUH, (a) to not exercise its Redemption Rights in respect of (x) the Class A Common Stock beneficially owned by it, or (y) any other shares, capital stock or other equity interests, as applicable, of CPUH, which it holds on the date of the Non-Redemption Agreement, and (b) to not, among other things, sell, encumber or otherwise transfer such Class A Common Stock or other shares, capital stock, or equity interests;

 

WHEREAS, concurrently with the execution of this Agreement, the Company is entering into (i) a Revenue Interest Financing Agreement (the “Revenue Interest Financing Agreement”) with RTW Master Fund, Ltd. an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (collectively, “RTW”), pursuant to which, among other things, subject to the terms and conditions set forth therein, RTW is agreeing to provide financing to the Company in the initial amount equal to $40 million, subject to the terms and conditions set forth therein (such financing hereinafter referred to as the “Revenue Interest Financing”), and (ii) a side letter (the “RTW Side Letter”) with the Company, Pubco, Merger Sub II and RTW, pursuant to which, among other things, subject to the terms and conditions set forth therein, (a) CPUH and Pubco are agreeing not to enter into Subscription Agreements with Investors on more favorable or advantageous terms than those included in the Subscription Agreements to be entered into by and among CPUH, Pubco and RTW, (b) subject to the terms and conditions of the RTW Side Letter, Pubco is agreeing to convert up to 50% of the consideration RTW pays to Pubco in connection with the PIPE Financing by forfeiting Pubco Common Stock into financing provided by RTW to the Company pursuant to an Additional Revenue Interest Financing Agreement (as defined in the RTW Side Letter), (c) Pubco is agreeing to issue up to an additional 1,000,000 shares of Pubco Common Stock to RTW and (d) Pubco is agreeing that RTW shall have the right to designate one director to the Pubco Board (as defined below), in each case, subject to the terms and conditions set forth therein;

 

2

 

 

WHEREAS, concurrently with the execution of this Agreement, the Company is entering into a Bridging Agreement (the “Fortress Bridging Agreement”) with Fortress Credit Corp. or its affiliates (“Fortress”), pursuant to which, among other things, subject to the terms and conditions set forth therein and in the Fortress Credit Agreement (as defined below), Fortress will agree to execute a Credit Agreement (the “Fortress Credit Agreement”) on the Closing Date pursuant to which, among other things, Fortress will agree to provide the Company with a term loan in an amount of up to $60 million substantially concurrently with the consummation of the Mergers, subject to the terms and conditions set forth therein (the “Fortress Financing”);

 

WHEREAS, as contemplated by that certain Commitment Letter, dated on or about the date hereof (the “Chardan Commitment Letter”), by and between the Company and Chardan Capital Markets LLC (“Chardan”), Pubco and Chardan shall enter into a Chardan Equity Facility, to be dated and executed as of the Closing Date, pursuant to which, among other things, Pubco may issue and sell to Chardan, from time to time, and Chardan shall purchase from Pubco, shares of Pubco Common Stock (the “Chardan Equity Line”);

 

WHEREAS, at the Intermediate Merger Closing, the Surviving Corporation, the Sponsor and certain stockholders of the Company shall enter into an investor rights and lock-up agreement, substantially in the form attached hereto as Exhibit A (the “Investor Rights Agreement”), pursuant to which, among other things, each signatory thereto (other than the Surviving Corporation) will (a) agree not to effect any sale or distribution of any shares of Pubco Common Stock held by him, her or it during the lock-up period described therein, and (b) be granted certain registration rights with respect to his, her or its shares of Pubco Common Stock, in each case, on the terms and subject to the conditions therein;

 

WHEREAS, concurrently with the execution of this Agreement, CPUH, Pubco, the Sponsor and the Company, among others, are entering into the sponsor support agreement attached hereto as Exhibit B (the “Sponsor Support Agreement”), pursuant to which, among other things, the Sponsor and certain other Pre-Closing CPUH Stockholders are agreeing (a) to vote their respective shares of Class B Common Stock in favor of the Required Transaction Proposals, (b) not to transfer their respective shares of Class B Common Stock, (c) solely with respect to the Sponsor, to recapitalize its shares of Class B Common Stock and CPUH Private Warrants into Class A Common Stock (the “Sponsor Recapitalization”), (d) solely with respect to each of Hani Barhoush, Michael Harsh and Gwendolyn A. Watanabe, to recapitalize their shares of Class B Common Stock into Class A Common Stock (the “Additional Share Conversion”) and (e) to waive any adjustment to the conversion ratio set forth in the Governing Documents of CPUH or any other anti-dilution or similar protection with respect to their respective shares of Class B Common Stock in connection with the transactions contemplated by this Agreement, in each case, on the terms and subject to the conditions set forth in the Sponsor Support Agreement;

 

3

 

 

WHEREAS, concurrently with the execution of this Agreement, certain Company Stockholders (the “Initial Company Support Stockholders”) are entering into the stockholder support agreement attached hereto as Exhibit C (the “Company Support Agreement”), pursuant to which, among other things, such Company Stockholders are agreeing (a) to, as promptly as practicable following the time at which the Registration Statement/Proxy Statement shall have been declared effective and made available to such Company Stockholders, vote their Company Shares in favor of, or execute written consents to adopt and approve, upon the effectiveness of the Registration Statement/Proxy Statement, this Agreement, any Ancillary Documents to which the Company or Pubco is or will be a party, the Mergers and the other transactions contemplated by this Agreement and any Ancillary Documents to which the Company or Pubco is or will be a party, and (b) not to transfer, prior to the Intermediate Merger Effective Time, such Company Stockholder’s Company Shares, subject to the exceptions set forth therein;

 

WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously (a) determined that this Agreement, the Ancillary Documents to which the Company is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of the Company and the Company Stockholders, (b) approved and declared advisable this Agreement, the Ancillary Documents to which the Company or Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) resolved to recommend that the Company Stockholders adopt and approve this Agreement, the Ancillary Documents to which the Company or Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers);

 

WHEREAS, the board of directors of CPUH (the “CPUH Board”) has unanimously (a) determined that this Agreement, the Ancillary Documents to which a CPUH Party is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of CPUH and its stockholders, (b) approved and declared advisable this Agreement, the Ancillary Documents to which a CPUH Party is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) resolved to recommend that its stockholders adopt and approve this Agreement and the Required Transaction Proposals, including the adoption and approval of this Agreement, each Ancillary Document to which CPUH is a party and the transactions contemplated hereby and thereby (including the Mergers);

 

WHEREAS, each of the board of directors and board of managers of Merger Sub I and Merger Sub II, respectively, has unanimously (a) determined that this Agreement, the Ancillary Documents to which Merger Sub I and Merger Sub II, respectively, is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of Merger Sub I and its sole stockholder and Merger Sub II and its sole member, respectively, (b) approved and declared advisable this Agreement, the Ancillary Documents to which Merger Sub I and Merger Sub II, respectively, is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) recommended that the sole stockholder of Merger Sub I and the sole member of Merger Sub II, respectively, adopt and approve this Agreement, the Ancillary Documents to which Merger Sub I and Merger Sub II, respectively, is or will be party and the transactions contemplated hereby and thereby (including the Mergers);

 

4

 

 

WHEREAS, the board of directors of Pubco (the “Pubco Board”) has unanimously (a) determined that this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of Pubco and its sole stockholder, (b) approved and declared advisable this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) recommended that the sole stockholder of Pubco adopt and approve this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers);

 

WHEREAS, CPUH, as the sole stockholder of Merger Sub I and sole member of Merger Sub II, will approve, adopt and declare advisable this Agreement, the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby (including the Mergers);

 

WHEREAS, the Company, as the sole stockholder of Pubco, will approve, adopt and declare advisable this Agreement, the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby (including the Mergers);

 

WHEREAS, each of the Parties intends that, for U.S. federal income tax purposes, (a) this Agreement constitutes a “plan of reorganization” with respect to the Mergers within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations promulgated thereunder, (b) the Intermediate Merger and Final Merger be considered together as a single integrated transaction and shall together qualify as a “reorganization” within the meaning of Section 368(a) of the Code and applicable Treasury Regulations, to which each of Pubco and Company will be a party within the meaning of Section 368(b) of the Code and applicable Treasury Regulations, and (c) the CPUH Merger shall qualify as a “reorganization” described in Section 368(a)(1)(F) of the Code and applicable Treasury Regulations, to which each of CPUH and Pubco will be a party within the meaning of Section 368(b) of the Code and applicable Treasury Regulations (collectively, the “Intended Tax Treatment”); and

 

WHEREAS, in connection with the CPUH Merger Closing, CPUH, Pubco and the Exchange Agent will enter into a Warrant Assignment, Assumption and Amendment Agreement (the “Warrant Assumption Agreement ”), in such form as may be agreed among CPUH, Pubco, the Exchange Agent and the Company, to be effective upon the CPUH Merger Closing.

 

NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:

 

Article 1
CERTAIN DEFINITIONS

 

Section 1.1 Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

 

Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

 

5

 

 

Affordable Care Act” means the Patient Protection and Affordable Care Act of 2010.

 

Aggregate Consideration” means, collectively, the Aggregate Intermediate Merger Closing Merger Consideration and, if any, the Contingency Consideration.

 

Aggregate Intermediate Merger Closing Merger Consideration” means a number of shares of Pubco Common Stock equal to (a) 37,812,000 minus (b) (i) 1,500,000 multiplied by (ii) the Net Closing Cash Percentage.

 

AICPA” means the American Institute of Certified Public Accountants.

 

Ancillary Documents” means the Investor Rights Agreement, the Subscription Agreements, the Sponsor Support Agreement, the Non-Redemption Agreement, the Company Support Agreement, the Revenue Interest Financing Agreement, the Fortress Bridging Agreement, the Warrant Assumption Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement executed or to be executed in connection with the transactions contemplated hereby.

 

Anti-Corruption Laws” means, collectively, (a) the U.S. Foreign Corrupt Practices Act (the “FCPA”), (b) the UK Bribery Act 2010 and (c) any other anti-bribery or anti-corruption Laws related to combating bribery, corruption and money laundering, each as applicable.

 

Available Closing Cash” means, as of immediately prior to the Intermediate Merger Closing and after the CPUH Merger Closing, (a) the amount of funds contained in the Trust Account (after reduction for the aggregate amount of payments made or required to be made in connection with the CPUH Stockholder Redemption), plus (b) the amount of funds available pursuant to the PIPE Financing, plus (c) the amount of funds available to the Company as of the Intermediate Merger Closing pursuant to the Revenue Interest Financing Agreement, plus (d) in the event that, pursuant to and as a result of the consummation of the Incremental Financing, the Company raises in excess of $15,000,000 of net proceeds (such excess, the “Incremental Financing Excess Amount”), an amount equal to the lesser of (x) the Incremental Financing Excess Amount and (y) the amount of cash on hand actually held by the Company immediately prior to the Intermediate Merger Closing, plus (e) (x) the amount of funds available to the Intermediate Surviving Corporation as of the Intermediate Merger Closing pursuant to the Fortress Credit Agreement less (y) the amount payable to Runway Growth Finance Corp. in connection with the repayment and termination of the Indebtedness under the Runway Loan Documents (clause (e), the “Fortress Incremental Amount”).

 

Business” means the development, manufacture and sale of gastric balloon devices for weight loss, as conducted by the Company and its Subsidiaries as of the date of this Agreement.

 

Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general transaction of business.

 

6

 

 

Change of Control Payment” means (a) any success, stay, change of control, retention, severance, transaction bonus or other similar payment to any Person that is payable in connection with the consummation of the transactions contemplated by this Agreement or any Ancillary Document, or (b) any payments made or required to be made pursuant to or in connection with or upon termination of, and any fees, expenses or other payments owing in respect of, any arrangement with a Company Related Party (in the case of each of clause (a) and (b), regardless of whether paid or payable prior to, at or after the Intermediate Merger Closing or in connection with or otherwise related to this Agreement or any Ancillary Document).

 

Class A Common Stock” means Class A common stock, $0.0001 par value, of CPUH.

 

Class B Common Stock” means Class B common stock, $0.0001 par value, of CPUH.

 

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

 

Company Acquisition Proposal” means (a) any transaction or series of related transactions under which any Person(s), directly or indirectly, acquires or otherwise purchases (i) the Company, or (ii) 15% or more of the assets or businesses of the Company and its Subsidiaries, taken as a whole (in the case of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase, business combination or issuance of Equity Securities, tender offer or otherwise), or (b) 15% or more of any class of Equity Securities of the Company or any of its Subsidiaries. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents, or the transactions contemplated hereby or thereby shall constitute a Company Acquisition Proposal.

 

Company and Pubco Fundamental Representations” means the representations and warranties set forth in Sections 3.1(a) (Organization and Qualification); Section 3.2(a), Section 3.2(b), Section 3.2(d), Section 3.2(f) and Section 3.2(g) (Capitalization); Section 3.3 (Authority) and Section 3.18 (Brokers).

 

Company Business Intellectual Property” means collectively, the Company Owned Intellectual Property and the Company Licensed Intellectual Property.

 

Company Certificate of Incorporation” means, the Fifth Amended and Restated Certificate of Incorporation of the Company, dated July 23, 2021, as amended by that certain Certificate of Amendment to the Fifth Amended and Restated Certificate of Incorporation of the Company, dated December 29, 2021.

 

Company Common Stock” means common stock, par value $0.0001 per share, of the Company.

 

Company Convertible Note” means an outstanding convertible unsecured promissory note issued by the Company pursuant to that certain Convertible Note Purchase Agreement, dated December 22, 2021, by and among the Company and the investors listed on Exhibit A thereto.

 

Company D&O Expenses” means any fees, costs and expenses related to directors’ and officers’ liability insurance with respect to the Company D&O Persons, including in respect of the Company D&O Tail Policy.

 

Company Disclosure Schedules” means the disclosure schedules to this Agreement delivered to CPUH and each Merger Sub by the Company and Pubco on the date of this Agreement.

 

Company Equity Plans” means the Company’s Amended and Restated 2020 Stock Option and Grant Plan and 2010 Stock Incentive Plan, in each case, as amended or restated from time to time.

 

7

 

 

Company Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of the Company or any of its Subsidiaries, whether or not due and payable, and not otherwise expressly allocated to a CPUH Party pursuant to the terms of this Agreement or any Ancillary Document, in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) the fees, costs, commissions and expenses of outside legal counsel, accountants, advisors, brokers, investment bankers, finders, consultants, or other agents or service providers of the Company, (b) any Change of Control Payment (including the employer portion of any payroll, social security or similar Taxes related thereto) and (c) reimbursement of fees and expenses of (i) RTW pursuant to the terms of the Revenue Interest Financing Agreement and (ii) Fortress pursuant to the terms of the Fortress Bridging Agreement. Notwithstanding the foregoing or anything to the contrary herein, Company Expenses shall not include any CPUH Expenses, D&O Expenses, HSR Fees, New Equity Incentive Fees, Registration Statement Expenses or Warrantholder Solicitation Expenses.

 

Company IT Systems” means any and all computer systems, Software and hardware, communication systems, servers, network equipment and related documentation, in each case, owned, used, licensed, or leased by the Company or its Subsidiaries.

 

Company Licensed Intellectual Property” means any and all Intellectual Property Rights owned by or licensed to any Person (other than the Company or any of its Subsidiaries) that are licensed or sublicensed (or purported to be licensed or sublicensed) to the Company or any of its Subsidiaries.

 

Company Material Adverse Effect” means any Effect that, individually or in the aggregate with any other Effect, has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, results of operations or condition (financial, regulatory, clinical or otherwise) of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company or Pubco to consummate the Mergers; provided, however, that in the case of clause (a), none of the following shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would be reasonably expected to occur: any adverse Effect arising from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes or proposed changes in any applicable Laws or GAAP after the date of this Agreement, (v) any Effect that is generally applicable to the industries or markets in which the Company and its Subsidiaries operate, (vi) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of the Company and its Subsidiaries with employees, customers, contractors, lenders, suppliers, vendors, partners, licensors, licensees or other third parties related thereto (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 3.6(b) to the extent that their purpose is to address the consequences resulting from the public announcement or pendency or consummation of the transactions contemplated by this Agreement, or the condition set forth in Section 6.2(a) to the extent it relates to such representations and warranties), (vii) any failure by the Company and its Subsidiaries, taken as a whole, to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vi) or (viii)), or (viii) the occurrence of, but not the unavailability of casualty and/or business interruption insurance proceeds relating to, any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics or pandemics or the worsening of any pandemics (including COVID-19), acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing; provided, however, that any Effect resulting from a matter described in any of the foregoing clauses (i) through (v) or (viii) may be taken into account in determining whether a Company Material Adverse Effect has occurred or would be reasonably expected to occur to the extent, and solely to the extent, such Effect has a disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other participants operating in the same or similar industries or markets in which the Company and its Subsidiaries operate.

 

8

 

 

Company Option” means, as of any determination time, each option to purchase shares of Company Common Stock granted to any current or former director, manager, officer, employee or other service provider of the Company or any of its Subsidiaries that is outstanding and unexercised as of immediately prior to the Intermediate Merger Effective Time.

 

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

 

Company Preferred Stock” means, collectively, the Company Series A Preferred Stock, the Company Series A-1 Preferred Stock, the Company Series B Preferred Stock, the Company Series C Preferred Stock, the Company Series D-1 Preferred Stock, the Company Series D-2 Preferred Stock and the Company Series D-3 Preferred Stock.

 

Company Product” means the Allurion Balloon and each other product and service that is being researched, tested, developed, manufactured or commercialized by or on behalf of the Company or any of its Subsidiaries.

 

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

 

“Company RSU Awards” means all outstanding restricted stock unit awards denominated in shares of Company Common Stock immediately prior to the Intermediate Merger Effective Time, whether or not vested, granted pursuant to the Company Equity Plans.

 

Company Series A Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series A Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series A-1 Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series A-1 Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series B Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series B Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series C Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series C Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series D-1 Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series D-1 Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series D-2 Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series D-2 Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Series D-3 Preferred Stock” means preferred stock, par value $0.0001 per share, of the Company designated as “Series D-3 Preferred Stock” pursuant to the Company Certificate of Incorporation.

 

Company Shares” means, collectively, the Company Preferred Stock and the Company Common Stock.

 

Company Stockholder Approval” means the approval of this Agreement, the Ancillary Documents to which the Company or Pubco is or will be a party and the transactions contemplated hereby and thereby (including the Mergers), by the holders of at least (i) a majority of the outstanding Company Common Stock and Company Preferred Stock, voting together as a single class, (ii) a majority of the Company Series C Preferred Stock, voting separately, (iii) a majority of the Company Series A Preferred Stock, Company Series A-1 Preferred Stock, Company Series B Preferred Stock, Company Series D-1 Preferred Stock, Company Series D-2 Preferred Stock and Company Series D-3 Preferred Stock, voting together as a single class and (iv) one of Romulus Growth Allurion L.P. or Benon Group Ltd., voting separately.

 

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Company Stockholders” means, collectively, the holders of Company Common Stock and the Company Preferred Stock as of any determination time prior to the Intermediate Merger Effective Time.

 

Company Warrants” means any warrant to purchase Company Shares.

 

Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of December 5, 2021, between the Company and CPUH.

 

Consent” means any notice, authorization, qualification, registration, filing, notification, waiver, order, consent or approval to be obtained from, filed with or delivered to, a Governmental Entity or other Person.

 

Contingency Pro Rata Share” means the pro rata portion of the Contingency Consideration allocated to each Eligible Company Equityholder as set forth in the Allocation Schedule pursuant to Section 2.4.

 

Contract” or “Contracts” means any agreement, contract, license, lease, obligation, undertaking or other commitment or arrangement.

 

Copyrights” has the meaning set forth in the definition of Intellectual Property Rights.

 

COVID-19” means SARS-CoV-2, and any evolutions, mutations and variants thereof or related or associated epidemics, pandemics or disease outbreaks.

 

CPUH Acquisition Proposal” means any transaction or series of related transactions under which CPUH or any of its Affiliates, directly or indirectly, (i) acquires or otherwise purchases any other Person(s), (ii) engages in a business combination with any other Person(s), or (iii) acquires or otherwise purchases at least a majority of the voting securities of such Person(s) or all or substantially all of the assets or businesses of any other Person(s) (in the case of each of clauses (i), (ii) and (iii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, tender offer or otherwise). Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby (including the PIPE Financing) shall constitute a CPUH Acquisition Proposal.

 

CPUH Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of Compute Health Acquisition Corp., dated as of February 4, 2021, as amended by that certain Certificate of Amendment of Amended and Restated Certificate of Incorporation of Compute Health Acquisition Corp., dated as of December 5, 2022.

 

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

 

CPUH D&O Expenses” means any fees, costs and expenses related to directors’ and officers’ liability insurance with respect to the CPUH D&O Persons, including in respect of the CPUH D&O Tail Policy.

 

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CPUH Disclosure Schedules” means the disclosure schedules to this Agreement delivered to the Company and Pubco by CPUH and each Merger Sub on the date of this Agreement.

 

CPUH Expenses” means, as of any determination time, the aggregate amount of fees, expenses, commissions or other amounts incurred by or on behalf of any CPUH Party, whether or not due and payable, and not otherwise expressly allocated to the Company or Pubco pursuant to the terms of this Agreement or any Ancillary Document, in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, including (a) deferred underwriting commissions disclosed in any CPUH SEC Reports, (b) the fees, costs, commissions and expenses of outside legal counsel, accountants, advisors, brokers, finders, investment bankers, consultants, the Trustee and transfer or exchange agent, as applicable, or other agents or service providers of any CPUH Party, (c) incurred in connection with the PIPE Financing, including any cash financing fees or third-party advisory expenses in connection therewith and (d) CPUH Extension Expenses (excluding any Sponsor Loans that convert into shares of Pubco Common Stock in accordance with Section 5.11). Notwithstanding the foregoing or anything to the contrary herein, CPUH Expenses shall not include any Company Expenses, Subscription Agreement Enforcement Expenses, Registration Statement Expenses, D&O Expenses, New Equity Incentive Fees, HSR Fees, Warrantholder Solicitation Expenses or any fees, expenses, commissions or other amounts under any Sponsor Loans.

 

CPUH Extension Approval” means the approval of the stockholders of CPUH at a special meeting of stockholders of a proposal to, among other things, amend the CPUH Governing Documents to extend the date by which CPUH has to consummate a business combination from February 9, 2023 to the date set forth in the CPUH Extension Proxy Statement.

 

CPUH Extension Expenses” means, as of any determination time, the aggregate amount of fees, expenses, or other amounts incurred by or on behalf of any CPUH Party or Sponsor in connection with the CPUH Extension Proxy Statement or CPUH Extension Approval, including (a) the preparation, filing and distribution of the CPUH Extension Proxy Statement, (b) amounts outstanding under any unsecured promissory notes issued by CPUH to Sponsor, and (c) the fees, costs, commissions and expenses of outside legal counsel, accountants, advisors, brokers, finders, investment bankers, consultants, the Trustee and transfer or exchange agent, as applicable, or other agents or service providers of any CPUH Party.

 

CPUH Extension Proxy Statement” means the definitive proxy statement in connection with the CPUH Extension Approval as filed by CPUH with the SEC on November 4, 2022, as may be amended or supplemented.

 

CPUH Fundamental Representations” means the representations and warranties set forth in Sections 4.1 (Organization and Qualification); 4.2 (Authority); 4.4 (Brokers); and 4.6(a) and 4.6(b) (Capitalization).

 

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CPUH Material Adverse Effect” means any Effect that, individually or in the aggregate with any other Effect, has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, results of operations or condition (financial, regulatory or otherwise) of the CPUH Parties, taken as a whole, or (b) the ability of CPUH or either Merger Sub to consummate the Mergers; provided, however, that, in the case of clause (a), none of the following shall be taken into account in determining whether a CPUH Material Adverse Effect has occurred or would be reasonably expected to occur: any adverse Effect arising from or related to (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally, (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism, (iii) changes in conditions of the financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country and changes in exchange rates for the currencies of any countries, (iv) changes or proposed changes in any applicable Laws or GAAP after the date of this Agreement, (v) any Effect that is generally applicable to the industries or markets in which any CPUH Party operates, (vi) the execution or public announcement of this Agreement or the pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on the relationships, contractual or otherwise, of any CPUH Party with contractors, lenders, suppliers, vendors, partners, licensors, licensees or other third parties related thereto (provided that the exception in this clause (vi) shall not apply to the representations and warranties set forth in Section 4.3(b) to the extent that their purpose is to address the consequences resulting from the public announcement or pendency or consummation of the transactions contemplated by this Agreement or the condition set forth in Section 6.3(a) to the extent it relates to such representations and warranties), (vii) any failure by any CPUH Party to meet, or changes to, any internal or published budgets, projections, forecasts, estimates or predictions (although the underlying facts and circumstances resulting in such failure may be taken into account to the extent not otherwise excluded from this definition pursuant to clauses (i) through (vi) or (viii)), (viii) the occurrence of, but not the unavailability of casualty and/or business interruption insurance proceeds relating to, any hurricane, tornado, flood, earthquake, tsunami, natural disaster, mudslides, wild fires, epidemics or pandemics or the worsening of any pandemics (including COVID-19), acts of God or other natural disasters or comparable events in the United States or any other country or region in the world, or any escalation of the foregoing, (ix) any Effect relating to the Company or its Subsidiaries or the Company Stockholders, (x) any CPUH Stockholder Redemption, in and of itself or (xi) any breach of any covenants, agreements or obligations of an Investor under a Subscription Agreement (including any breach of an Investor’s obligations to fund its commitment thereunder when required) or the Non-Redemption Agreement; provided, however, that any Effect resulting from a matter described in any of the foregoing clauses (i) through (v) or (viii) may be taken into account in determining whether a CPUH Material Adverse Effect has occurred or would be reasonably expected to occur to the extent, and solely to the extent, such Effect has a disproportionate adverse effect on the CPUH Parties, taken as a whole, relative to other “SPACs” operating in the same or similar industries in which the CPUH Parties operate.

 

CPUH Parties” means, collectively, CPUH and the Merger Subs.

 

CPUH Private Warrant” means the CPUH Warrants held by the Sponsor.

 

CPUH Redemption Shares” means all shares of Class A Common Stock for which a CPUH Stockholder Redemption has been exercised in connection with the transactions contemplated hereby.

 

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CPUH Stockholder Approval” means the approval of each Required Transaction Proposal by the affirmative vote of the holders of the requisite number of shares of CPUH Common Stock entitled to vote thereon, whether in person or by proxy at the CPUH Stockholders Meeting (or any adjournment or postponement thereof), including the affirmative vote of the holders of a majority of the issued and outstanding Class A Common Stock, voting separately as a single class, in accordance with the Governing Documents of CPUH and applicable Law.

 

CPUH Stockholder Redemption” means the right of the holders of Class A Common Stock to redeem all or a portion of their Class A Common Stock (in connection with the transactions contemplated by this Agreement or otherwise) as set forth in the CPUH Certificate of Incorporation.

 

CPUH Unit” means the units issued in CPUH’s initial public offering consisting of one share of Class A Common Stock and one-quarter of a CPUH Warrant.

 

CPUH Public Warrants” means the Public Warrants as defined in the Warrant Agreement.

 

CPUH Warrants” means each warrant to purchase one share of Class A Common Stock at an exercise price of $11.50 per share, subject to adjustment in accordance with the Warrant Agreement.

 

D&O Expenses” means Company D&O Expenses and CPUH D&O Expenses.

 

Effect” means any state of facts, event, change, effect, occurrence, circumstance or development.

 

Eligible Company Equityholder” means a holder of one or more shares of Company Common Stock, Company Preferred Stock, Company RSU Awards, Assumed Warrants or Vested Company Options, in each case, immediately prior to the Intermediate Merger Effective Time.

 

Employee Benefit Plan” means each (A) “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA), (B) each stock option plan, stock purchase plan, bonus or incentive plan, program, agreement or arrangement (whether equity-based or otherwise), severance pay plan, program or arrangement, deferred compensation arrangement or agreement, employment agreement, compensation plan, program, agreement or arrangement, change in control plan, program or arrangement, supplemental income arrangement, vacation plan, fringe benefit, and each other employee benefit plan, program, policy, agreement and arrangement not described in (A) above, and (C) each plan or arrangement providing compensation to employee and non-employee directors of the Company or any of its Subsidiaries, in each case of clauses (A), (B) and (C), that the Company or any of its Subsidiaries maintain, sponsor or contribute to or has any obligation to contribute to, or under or with respect to which the Company or any of its Subsidiaries has or may have any present or future Liability (including as an ERISA Affiliate), whether written or unwritten and whether funded or unfunded.

 

Environmental Laws” means all Laws and Orders concerning pollution, protection of the environment, or human health or safety.

 

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Equity Securities” means any share, share capital, capital stock, partnership, membership, unit, joint venture or similar interest in any Person (including any stock appreciation, phantom stock, profit participation or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.

 

ERISA” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate” means any entity, trade or business (whether or not incorporated) that is, or at any applicable time was, or would reasonably be expected to be deemed, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the Company or any of its Subsidiaries.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Expense Allocation Schedule” means Schedule I attached hereto.

 

FDA” means the U.S. Food and Drug Administration, or any successor agency thereto.

 

Federal Securities Laws” means U.S. federal securities laws and the rules and regulations of the SEC promulgated thereunder or otherwise.

 

Fraud” means actual, knowing (with scienter) and intentional common law fraud in the making of any representation or warranty set forth in this Agreement, as construed under the Laws of the State of Delaware. For the avoidance of doubt, “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud or any torts (including a claim for fraud) based on negligence or recklessness.

 

Fully Diluted Company Capitalization” means, without duplication, the sum of (a) the aggregate number of shares of Company Common Stock issued and outstanding as of immediately prior to the Intermediate Merger Effective Time, determined on an as-converted basis in accordance with the Company’s Governing Documents (including, for the avoidance of doubt, the number of shares of Company Common Stock (i) issuable upon conversion of the shares of Company Preferred Stock issued and outstanding (or issuable upon conversion of any shares of Company Preferred Stock issuable upon exercise of any Company Warrant) as of immediately prior to the Intermediate Merger Effective Time, based on the then applicable conversion ratio in accordance with the Company’s Governing Documents, (ii) resulting from the Convertible Notes Conversion and (iii) issued in connection with the Incremental Financing (or issuable upon conversion, immediately prior to the Intermediate Merger Effective Time, of any Incremental Convertible Equity Securities)), (b) the aggregate number of shares of Company Common Stock subject to Company RSU Awards and Company Options (including both Vested Company Options and Unvested Company Options, and including both Vested Company RSU Awards and Unvested Company RSU Awards) (to the extent not included in clause (a)) as of immediately prior to the Intermediate Merger Effective Time and (c) the aggregate number of shares of Company Common Stock issuable upon exercise of any Company Warrants as of immediately prior to the Intermediate Merger Effective Time (to the extent not included in clause (a)).

 

GAAP” means United States generally accepted accounting principles.

 

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Good Laboratory Practices” mean the then current standards for conducting nonclinical laboratory studies, as set forth in the FDCA and applicable regulations promulgated thereunder, as amended from time to time, including applicable requirements contained in 21 C.F.R. Part 58, and such applicable standards of good laboratory practices as are required by Governmental Entities in any other countries in which the Company Products are intended to be sold.

 

Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or other organizational documents of such Person. For example, the “Governing Documents” of a U.S. corporation are its certificate or articles of incorporation and by-laws, the “Governing Documents” of a U.S. limited partnership are its limited partnership agreement and certificate of limited partnership and the “Governing Documents” of a U.S. limited liability company are its operating or limited liability company agreement and certificate of formation.

 

Governmental Entity” means any United States or non-United States (a) federal, state, local, municipal, supranational or other government, (b) governmental or quasi-governmental entity of any nature (including any governmental agency, branch, department, official or entity and any court or other tribunal), or (c) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature, including any arbitral tribunal (public or private).

 

FCPA” has the meaning set forth in the definition of Anti-Corruption Laws.

 

Fortress Incremental Amount” has the meaning set forth in the definition of Available Closing Cash.

 

Healthcare Laws” means all Laws relating to patient care or human health and safety, including, as amended from time to time, any such Law pertaining to the research (including preclinical, nonclinical and clinical research or studies), development, testing, manufacture, storing, distribution, approval, labeling, marketing, pricing, third-party reimbursement or sale of medical devices, including (i) the FDCA, and (ii) all Laws relating to any federal health care program (as such term is defined in 42 U.S.C. § 1320a-7b(f)), including the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Stark Anti-Self-Referral Law (42 U.S.C. § 1395nn), the civil False Claims Act (31 U.S.C. § 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), Sections 1320a-7, 1320a-7a, and 1320a-7b of Title 42 of the United States Code and any comparable self-referral or fraud and abuse laws promulgated by any Governmental Entity, the 21st Century Cures Act (Pub. L. 114-255), and any state or federal Law the purpose of which is to protect the privacy of individually-identifiable patient information, Medicare (Title XVIII of the Social Security Act) and Medicaid (Title XIX of the Social Security Act), the Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, TRICARE (10 U.S.C. Section 1071 et seq.), the Sunshine/Open Payments Law (42 U.S.C. § 1320a-7h) and similar state or foreign Laws related to the reporting of manufacturer payments or transfers of value to health care professionals, in each case including the associated rules and regulations promulgated thereunder and all of their foreign equivalents, and any other requirements of Law relating to the Business.

 

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HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.

 

Incentive Stock Option” means a Company Option intended to be an “incentive stock option” (as defined in Section 422 of the Code).

 

Indebtedness” means, as of any time, without duplication, with respect to any Person, the outstanding principal amount of, accrued and unpaid interest on, fees and expenses arising under or in respect of (a) indebtedness for borrowed money, (b) other obligations evidenced by any note, bond, debenture or other debt security, (c) obligations for the deferred purchase price of property or assets, including “earn-outs” and “seller notes” (but excluding any trade payables arising in the ordinary course of business), (d) reimbursement and other obligations with respect to letters of credit, bank guarantees, bankers’ acceptances or other similar instruments, in each case, solely to the extent drawn, (e) leases required to be capitalized under GAAP, (f) derivative, hedging, swap, foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements and (g) any of the obligations of any other Person of the type referred to in clauses (a) through (f) above directly or indirectly guaranteed by such Person or secured by any assets of such Person, whether or not such Indebtedness has been assumed by such Person.

 

Intellectual Property Rights” means any and all intellectual property rights and related priority rights protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all (a) patents and patent applications, industrial designs and design patent rights, including any continuations, divisionals, continuations-in-part and provisional applications and statutory invention registrations, and any patents issuing on any of the foregoing and any reissues, reexaminations, substitutes, supplementary protection certificates or extensions of any of the foregoing (collectively, “Patents”), (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names, social media accounts or identifiers, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, extensions and renewals of any of the foregoing (collectively, “Marks”), (c) copyrights and rights in works of authorship, design rights, mask work rights and moral rights, whether or not registered or published, and all registrations, applications, renewals, extensions and reversions of any of any of the foregoing (collectively, “Copyrights”), (d) trade secrets, know-how and confidential and proprietary information, including invention disclosures, inventions, processes and formulae, whether patentable or not, (e) rights in or to Software or other technology, (f) rights in databases and compilations, including rights in data and collections of data, whether machine readable or otherwise and (g) any subject matter of any of the foregoing, tangible embodiments of any of the foregoing and any other intellectual or proprietary rights protectable, arising under or associated with any of the foregoing, including those protected by any Law anywhere in the world.

 

Intermediate Merger Exchange Ratio” means (a) the Aggregate Intermediate Merger Closing Merger Consideration, divided by (b) the Fully Diluted Company Capitalization.

 

Key Employee” means any individual employed by, or otherwise providing services to, the Company or any of its Subsidiaries with the title of “vice president” or above, or who directly reports to, or is, the Chief Executive Officer (or similar role).

 

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Law” means any federal, state, local, foreign, national or supranational statute, law (including common law), act, ordinance, treaty, rule, code, regulation, order or other binding directive issued, promulgated or enforced by a Governmental Entity having jurisdiction over a given matter.

 

Liability” or “liability” means any and all debts and liabilities, whether accrued or fixed, absolute or contingent, known or unknown, matured or unmatured or determined or determinable, including those arising under any Law (including any Environmental Law), Proceeding or Order and those arising under any Contract.

 

Lien” means any mortgage, pledge, security interest, encumbrance, lien, license or sub-license, charge, covenant not to sue granted to a third party, or other similar encumbrance or interest (including, in the case of any Equity Securities, any voting, transfer or similar restrictions).

 

Marks” has the meaning set forth in the definition of Intellectual Property Rights.

 

Merger Consideration Per Fully Diluted Share” means (a) with respect to each share of Company Common Stock issued and outstanding as of immediately prior to the Intermediate Merger Effective Time, a number of shares of Pubco Common Stock equal to the Intermediate Merger Exchange Ratio, and (b) with respect to each share of Company Preferred Stock issued and outstanding as of immediately prior to the Intermediate Merger Effective Time, a number of shares of Pubco Common Stock equal to (i) the aggregate number of shares of Company Common Stock that would be issued upon conversion of such issued and outstanding share of Company Preferred Stock into Company Common Stock based on the applicable conversion ratio immediately prior to the Intermediate Merger Effective Time, in accordance with the Company’s Governing Documents, as set forth in the Allocation Schedule, multiplied by (ii) the Intermediate Merger Exchange Ratio.

 

Net Closing Cash” means (a) the Available Closing Cash minus (b) the Unpaid Expenses.

 

Net Closing Cash Percentage” means the percentage obtained by the following calculation: (a) $100,000,000, minus Net Closing Cash, divided by (b) $30,000,000; provided, that (i) if Net Closing Cash equal or exceeds $100,000,000, then the Net Closing Cash Percentage shall be deemed to be zero and (ii) the Net Closing Cash Percentage shall not exceed one hundred percent (100%).

 

New Equity Incentive Fees” means the New Equity Incentive Plan Fees and the New ESPP Fees.

 

NYSE” means the New York Stock Exchange.

 

Off-the-Shelf Software” means any Software that is made generally and widely available to the public on a commercial basis and is licensed to the Company or any of its Subsidiaries on a non-exclusive basis under standard terms and conditions.

 

Order” means any outstanding writ, order, judgment, injunction, decision, determination, award, ruling, subpoena, verdict or decree entered, issued or rendered by any Governmental Entity.

 

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Pandemic Measures” means any “shelter-in-place,” “stay at home,” workforce reduction, furlough, employee leave, social distancing, shut down, closure, sequester, business or workplace reopening, restrictions or requirements pursuant to any Law, order, or directive of or by any Governmental Entity in connection with or in respect of COVID-19 or any other pandemic, epidemic, public health emergency or virus or disease outbreak.

 

Patents” has the meaning set forth in the definition of Intellectual Property Rights.

 

PCAOB” means the Public Company Accounting Oversight Board.

 

Permits” means any approvals, Consents, authorizations, clearances, licenses, registrations, permits or certificates of or issued by a Governmental Entity.

 

Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet delinquent or which are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) Liens for Taxes, assessments or other governmental charges not yet delinquent or which are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (c) encumbrances and restrictions on real property (including easements, covenants, conditions, rights of way and similar restrictions) that do not prohibit or materially interfere with the Company’s or its Subsidiaries’ use or occupancy of such real property for the operation of the Business, (d) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such real property and which are not violated by the use or occupancy of such real property for the operation of the Business and do not prohibit or materially interfere with the Company’s or its Subsidiaries’ use or occupancy of such real property for the operation of the Business, (e) in the case of the Leased Real Property, any Lien granted by any lessor, developer or third-party on any fee interest underlying the Leased Real Property with respect to which the Company or any Subsidiary had no approval right, (f) cash deposits or cash pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case in the ordinary course of business and which are not yet due and payable, (g) non-exclusive grants by the Company or its Subsidiaries of Intellectual Property Rights in the ordinary course of business consistent with past practice and that are not material to the Company or any of its Subsidiaries and (h) other Liens that do not materially and adversely affect the value, use, enforceability or operation of the asset subject thereto or, in the aggregate, materially impair the conduct of the Business.

 

Person” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity, whether or not a legal entity.

 

Personal Data” means any data in the Company’s possession, custody, or control, that identifies, or that could reasonably be used to identify, individually or in combination with any other data, any natural person or device or household or that is subject to regulation by Privacy Laws.

 

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Pre-Closing CPUH Stockholders” means the holders of CPUH Common Stock at any time prior to the CPUH Merger Effective Time.

 

Privacy Laws” means all applicable Laws that govern the Processing of Personal Data or governing data privacy or data or security breach notification.

 

Proceeding” means any claim, lawsuit, litigation, action, audit, inspection, complaint, proceeding, suit, arbitration or mediation (in each case, whether civil, criminal or administrative and whether public or private) pending by or before any Governmental Entity.

 

Process” (or “Processing” or “Processes”) means the collection, use, storage, processing, recording, distribution, transfer, import, export, protection (including security measures), disposal or disclosure or other activity regarding Personal Data (whether electronically or in any other form or medium).

 

Pubco Common Stock” means common stock, $0.0001 par value, of Pubco.

 

Pubco Stockholder Approval” means the approval of this Agreement, the Ancillary Documents to which Pubco is or will be a party and the transactions contemplated hereby and thereby (including the Mergers), by the Company, as the sole stockholder of Pubco.

 

Real Property Leases” means all leases, sub-leases, licenses or other agreements, in each case, as amended from time to time and pursuant to which the Company or, if applicable, any of its Subsidiaries, leases, sub-leases or licenses any real property.

 

Redemption Rights” means the redemption rights provided for in Sections 9.2 and 9.7 of the CPUH Certificate of Incorporation.

 

Registered Intellectual Property” means all issued Patents, pending Patent applications, registered Marks, pending applications for registration of Marks, registered Copyrights, pending applications for registration of Copyrights and Internet domain name registrations.

 

Regulatory Permits” means all Permits granted by the FDA or any comparable Governmental Entity to the Company or any of its Subsidiaries, including investigational device exemptions, institutional review board approvals, marketing authorizations, clinical trial authorizations and ethical reviews, or their national or foreign equivalents.

 

Related Party Termination Approval” means any and all notices, approvals or consents required in connection with the termination or settlement of the Related Party Contracts and accounts set forth on Section 5.2(a) of the Company Disclosure Schedules without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Intermediate Merger Effective Time, the Surviving Corporation).

 

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Representatives” means, with respect to a Person, such Person’s directors, officers and employees, and legal, financial, internal and independent accounting and other advisors and representatives.

 

Required Governing Document Proposals” means the approval of the Pubco Governing Documents, in each case in the forms mutually agreed upon by CPUH and the Company, and each corporate governance provision included in the Pubco Governing Documents that is not currently included in the Governing Documents of CPUH, effected thereby that is required to be separately approved, including any separate or unbundled advisory proposals as are required to implement the foregoing.

 

Requisite CPUH Warrantholder Approval” means the vote or written consent of the registered holders of at least fifty percent (50%) of the then outstanding CPUH Public Warrants to amend the CPUH Public Warrants to permit the conversion or exchange of CPUH Public Warrants for Pubco Common Stock at the CPUH Merger Effective Time at an exchange ratio mutually agreed upon by CPUH, Pubco and the Company.

 

Restricted Person” means any Person identified on the U.S. Department of Commerce’s Entity List, Denied Persons List, Unverified List or Military End User List, or the U.S. Department of State’s Debarred List.

 

Runway Loan Documents” means the “Loan Documents” as defined in that certain Amended and Restated Loan and Security Agreement, dated as of December 30, 2021, as amended on June 9, 2022 and September 15, 2022, among Allurion Technologies, Inc., the other borrowers party thereto from time to time, the lenders party thereto from time to time and Runway Growth Finance Corp, as administrative agent and collateral agent for the lenders party thereto.

 

Sanctioned Jurisdiction” means a country or territory that is itself the subject or target of comprehensive Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea, the so-called Luhansk People’s Republic, and the so-called Donetsk People’s Republic regions of Ukraine, and the non-government controlled areas of Ukraine in the oblasts of Kherson and Zaporizhzhia).

 

Sanctioned Person” means any Person subject to Sanctions, including as a result of being (a) listed in any Sanctions-related prohibited or restricted party list of sanctioned Persons, including those maintained by the United States (including the Department of the Treasury’s Office of Foreign Assets Control and the Department of State), the United Kingdom, or the European Union; (b) located, organized, or resident in a Sanctioned Jurisdiction; or (c) directly or indirectly owned fifty percent (50%) or more or controlled, individually or in the aggregate, by one or more Persons described in the foregoing clauses (a) and/or (b).

 

Sanctions and Export Control Laws” means any applicable Law related to (a) import and export controls, including the U.S. Export Administration Regulations, (b) economic or financial sanctions and trade embargoes (“Sanctions”), including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union, and the United Kingdom or (c) anti-boycott measures.

 

Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

 

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Schedules” means, collectively, the Company Disclosure Schedules and the CPUH Disclosure Schedules.

 

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

 

Securities Act” means the U.S. Securities Act of 1933, as amended.

 

Securities Laws” means Federal Securities Laws and other applicable foreign and domestic securities or similar Laws.

 

Software” means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code, (b) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing and, to the extent embodied in any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (c) documentation, including user manuals and other training documentation, related to any of the foregoing.

 

Specified Company Support Stockholder” means any Person that signs the Company Support Agreement after the execution of this Agreement.

 

Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be a, or control any, managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.

 

Tax” means any federal, state, local or non-U.S. income, gross receipts, franchise, estimated, alternative minimum, sales, use, transfer, value added, excise, stamp, customs, duties, ad valorem, real property, personal property (tangible and intangible), capital stock, social security, unemployment, payroll, wage, employment, severance, occupation, registration, communication, mortgage, profits, license, lease, service, goods and services, withholding, premium, unclaimed property, escheat, turnover, windfall profits or other similar charges imposed by a Governmental Entity in the nature of a tax, together with any interest, deficiencies, penalties, additions to tax or additional amounts imposed by any Governmental Entity with respect thereto.

 

Tax Authority” means any Governmental Entity responsible for the collection or administration of Taxes or Tax Returns.

 

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Tax Return” means returns, information returns, statements, declarations or claims for refund, together with any schedules thereto or amendments thereof, relating to Taxes filed or required to be filed with any Governmental Entity.

 

Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended from time to time.

 

Unpaid Company Expenses” means the Company Expenses that are unpaid as of the relevant determination date.

 

Unpaid CPUH Expenses” means the CPUH Expenses that are unpaid as of the relevant determination date.

 

Unpaid Expenses” means the Unpaid CPUH Expenses and Unpaid Company Expenses, in each case, as of immediately prior to the Intermediate Merger Closing.

 

Unvested Company Option” means each Company Option outstanding as of immediately prior to the Intermediate Merger Effective Time that is not a Vested Company Option.

 

Unvested Company RSU Award” means each Company RSU Award outstanding as of immediately prior to the Intermediate Merger Effective Time that is not a Vested Company RSU Award.

 

Vested Company Option” means each Company Option outstanding as of immediately prior to the Intermediate Merger Effective Time that is vested as of such time or will be vested as of the Intermediate Merger Effective Time in connection with the consummation of the transactions contemplated hereby.

 

Vested Company RSU Award” means each Company RSU Award outstanding as of immediately prior to the Intermediate Merger Effective Time that is vested as of such time or will be vested as of the Intermediate Merger Effective Time in connection with the consummation of the transactions contemplated hereby.

 

WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988, as amended.

 

Warrant Agreement” means the Warrant Agreement, dated as of February 4, 2021, by and between CPUH and Continental Stock Transfer & Trust Company, as warrant agent.

 

Willful Breach” means an intentional and willful breach, or an intentional and willful failure to perform, in each case, that is the consequence of an act or omission by a Party with the knowledge that the taking of such act or failure to take such act would cause a breach of this Agreement.

 

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Section 1.2 Certain Defined Terms. Each of the following terms is defined in the Section set forth opposite such term:

 

Term   Section
Additional Company Financial Statements   Section 5.7
Additional Share Conversion   Recitals
Aggregate CPUH Merger Consideration   Section 2.1(a)(xi)
Agreement   Preamble
Allocation Schedule   Section 2.4
Assumed Warrant   Section 2.6(a)
Audited Company Financial Statements   Section 3.5(a)
CARES Act   Section 3.17(o)
Certificates   Section 2.1(a)(xv)
Certificates of Merger   Section 2.1(a)(vi)
Change of Control   Section 2.2(c)
Chardan   Recitals
Chardan Commitment Letter   Recitals
Chardan Equity Line   Recitals
Closing Date   Section 2.3
Closing Filing   Section 5.4(b)
Closing Press Release   Section 5.4(b)
Closings   Section 2.3
Company   Preamble
Company Board   Recitals
Company Certificates   Section 2.1(a)(xv)
Company D&O Persons   Section 5.16(a)
Company D&O Tail Policy   Section 5.16(c)
Company Dissenting Shares   Section 2.9(a)
Company Financial Statements   Section 3.5(a)
Company Maximum Amount   Section 5.16(c)
Company Related Party   Section 3.20
Company Related Party Transactions   Section 3.20
Company Stockholder Written Consent   Section 5.14
Company Stockholder Written Consent Deadline   Section 5.14
Company Support Agreement   Recitals
Contingency Consideration   Section 2.2(a)(ii)
Contingency Consideration Tax Treatment   Section 2.2(f)
Contingency Shares   Section 2.2(a)
Convertible Notes Conversion   Section 2.6(b)
CPUH   Preamble
CPUH Board   Recitals
CPUH Certificate of Merger   Section 2.1(a)(iv)
CPUH Certificates   Section 2.1(a)(xi)
CPUH D&O Persons   Section 5.15(a)
CPUH D&O Tail Policy   Section 5.15(c)
CPUH Dissenting Shares   Section 2.9(b)
CPUH Financial Statements   Section 4.13(d)
CPUH Maximum Amount   Section 5.15(c)
CPUH Merger   Recitals

 

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CPUH Merger Closing   Section 2.3
CPUH Merger Effective Time   Section 2.1(a)(iv)
CPUH Related Party   Section 4.9
CPUH Related Party Transactions   Section 4.9
CPUH SEC Reports   Section 4.7
CPUH Stockholders Meeting   Section 5.8
Creator   Section 3.14(e)
DGCL   Recitals
DLLCA   Section 2.1(a)(iii)
Earnout Period   Section 2.2(a)(i)
Enforceability Exceptions   Section 3.3(a)
Exchange Agent   Section 2.7(a)
Exchange Agent Agreement   Section 2.7(a)
Exchange Fund   Section 2.7(c)
Extinguishable Sponsor Loan Excess   Section 5.11
FCPA   Section 1.1
FDCA   Section 3.24(c)
Fees and Expenses   Section 8.6
Final Merger   Recitals
Final Merger Certificate of Merger   Section 2.1(a)(vi)
Final Merger Closing   Section 2.3
Final Merger Effective Time   Section 2.1(a)(vi)
First Level Contingency Consideration   Section 2.2(a)(i)
First Share Target   Section 2.2(a)(i)
Fortress   Recitals
Fortress Bridging Agreement   Recitals
Fortress Credit Agreement   Recitals
Fortress Financing   Recitals
Goodwin Procter   Section 8.19(a)
Goodwin Procter Privileged Communications   Section 8.19(a)
Goodwin Procter Waiving Parties   Section 8.19(a)
Goodwin Procter WP Group   Section 8.19(a)
Government Contracts   Section 3.25
Government Funded IP   Section 3.14(l)
HSR Fee   Section 5.2(a)
Incremental Convertible Equity Securities   Section 5.26
Incremental Financing   Section 5.26
Incremental Financing Excess Amount   Section 1.1
Incremental Financing Outside Date   Section 5.26
Independent Director   Section 5.17(a)
Initial Company Support Stockholders   Recitals
Intended Tax Treatment   Recitals
Interim Period   Section 5.1(a)
Intermediate Certificate of Merger   Section 2.1(a)(v)
Intermediate Merger   Recitals
Intermediate Merger Closing   Section 2.3

 

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Intermediate Merger Effective Time   Section 2.1(a)(v)
Intermediate Surviving Corporation   Recitals
Investor Rights Agreement   Recitals
Investors   Recitals
IPO   Section 8.18
Leased Real Property   Section 3.19(b)
Letter of Transmittal   Section 2.7(b)
Licensed Patents   Section 3.14(a)
Material Contracts   Section 3.8(a)
Material Permits   Section 3.7
Merger Sub I   Preamble
Merger Sub II   Preamble
Merger Subs   Preamble
Mergers   Recitals
Net Closing Cash Condition   Section 6.1(h)
New Equity Incentive Plan   Section 5.7
New Equity Incentive Plan Fees   Section 5.7
New ESPP   Section 5.22
New ESPP Fees   Section 5.22
Non-Redemption Agreement   Recitals
Officers   Section 5.17(b)
Parties   Preamble
Party   Preamble
Permitted Transfer   Section 2.2(e)
PIPE Financing   Recitals
Privacy and Data Security Policies   Section 3.21(a)
Privacy Requirements   Section 3.21(a)
Prospectus   Section 8.18
Proxy Statement/Prospectus   Section 5.7
Pubco   Preamble
Pubco Board   Recitals
Pubco Governing Documents   Section 5.19(a)
Pubco Stockholder Written Consent   Section 5.9(b)
Pubco Warrant   Section 2.1(a)(xii)
Registration Statement   Section 5.7
Registration Statement Expenses   Section 5.7
Registration Statement/Proxy Statement   Section 5.7
Related Party Contract   Section 3.20
Required Transaction Proposals   Section 5.8
Resale Registration Statement   Section 5.7
Revenue Interest Financing Agreement   Recitals
Rollover Option   Section 2.5(a)
Rollover RSU   Section 2.5(b)
RTW   Recitals
Second Level Contingency Consideration   Section 2.2(a)(ii)
Second Share Target   Section 2.2(a)(ii)

 

25

 

 

Share Targets   Section 2.2(a)(ii)
Signing Filing   Section 5.4(b)
Signing Press Release   Section 5.4(b)
Skadden   Section 8.19(b)
Skadden Privileged Communications   Section 8.19(b)
Skadden Waiving Parties   Section 8.19(b)
Skadden WP Group   Section 8.19(b)
Sponsor   Recitals
Sponsor Loan Equity Conversion Cap   Section 5.11
Sponsor Loan Excess   Section 5.11
Sponsor Loans   Section 5.11
Sponsor Recapitalization   Recitals
Sponsor Support Agreement   Recitals
Subscription Agreement Enforcement   Section 5.18
Subscription Agreement Enforcement Expenses   Section 5.18
Subscription Agreements   Recitals
Subsidiary Securities   Section 3.4(b)
Surviving Corporation   Recitals
Surviving Subsidiary Company   Recitals
Termination Date   Section 7.1(d)
Transaction Litigation   Section 5.21
Trust Account   Section 8.18
Trust Account Released Claims   Section 8.18
Trust Agreement   Section 4.8
Trustee   Section 4.8
Unaudited Company Financial Statements   Section 3.5(a)
VWAP   Section 2.2(a)(i)
Warrant Assumption Agreement   Recitals
Warrantholder Solicitation Expenses   Section 5.25

 

Article 2
THE MERGERS

 

Section 2.1 Closing Transactions. On the terms and subject to the conditions set forth in this Agreement, the following transactions shall occur as set forth in Section 2.1(a):

 

(a) Mergers.

 

(i) On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, on the Closing Date and at the CPUH Merger Effective Time, CPUH shall merge with and into Pubco in the CPUH Merger. Following the CPUH Merger Effective Time, the separate existence of CPUH shall cease and Pubco shall continue as the Surviving Corporation.

 

(ii) On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, on the Closing Date and at the Intermediate Merger Effective Time, Merger Sub I shall merge with and into the Company in the Intermediate Merger. Following the Intermediate Merger Effective Time, the separate existence of Merger Sub I shall cease and the Company shall continue as the Intermediate Surviving Corporation (and a wholly-owned Subsidiary of the Surviving Corporation).

 

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(iii) On the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL and the Delaware Limited Liability Company Act (the “DLLCA”), on the Closing Date and at the Final Merger Effective Time, the Intermediate Surviving Corporation shall merge with and into Merger Sub II in the Final Merger. Following the Final Merger Effective Time, the separate existence of the Intermediate Surviving Corporation shall cease and Merger Sub II shall continue as the Surviving Subsidiary Company (and a wholly-owned Subsidiary of the Surviving Corporation).

 

(iv) At the CPUH Merger Closing and immediately following the Sponsor Recapitalization and the Additional Share Conversion, the Parties shall cause the CPUH Merger to be consummated by causing a certificate of merger with respect to the CPUH Merger, in a form reasonably satisfactory to and previously approved by the Company and CPUH (the “CPUH Certificate of Merger”), to be executed and filed with the Secretary of State of the State of Delaware in accordance with the DGCL, and shall make all other filings and recordings required under the DGCL (the date and time the CPUH Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware, or such later date or time as may be agreed by CPUH and the Company in writing and specified in the CPUH Certificate of Merger, the “CPUH Merger Effective Time”).

 

(v) At the Intermediate Merger Closing and at least three (3) hours following the CPUH Merger Effective Time, the Parties shall cause the Intermediate Merger to be consummated by causing a certificate of merger with respect to the Intermediate Merger, in a form reasonably satisfactory to and previously approved by the Company and CPUH (the “Intermediate Certificate of Merger”), to be executed and filed with the Secretary of State of the State of Delaware in accordance with the DGCL, and shall make all other filings and recordings required under the DGCL (the date and time the Intermediate Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware, or such later date or time as may be agreed by CPUH and the Company in writing and specified in the Intermediate Certificate of Merger, the “Intermediate Merger Effective Time”).

 

(vi) At the Final Merger Closing, immediately following the Intermediate Merger Effective Time, the Parties shall cause the Final Merger to be consummated by causing a certificate of merger with respect to the Final Merger, in a form reasonably satisfactory to and previously approved by the Company and CPUH (the “Final Merger Certificate of Merger” and, collectively with the CPUH Certificate of Merger and the Intermediate Certificate of Merger, the “Certificates of Merger”), to be executed and filed with the Secretary of State of the State of Delaware in accordance with the DGCL and the DLLCA, and shall make all other filings and recordings required under the DGCL and the DLLCA (the date and time the Final Merger Certificate of Merger is accepted for filing by the Secretary of State of the State of Delaware, or such later date or time as may be agreed by CPUH and the Company in writing and specified in the Final Merger Certificate of Merger, the “Final Merger Effective Time”).

 

(vii) At the Intermediate Merger Effective Time, the Governing Documents of Merger Sub I as in effect immediately prior to the Intermediate Merger Effective Time shall be the Governing Documents of the Intermediate Surviving Corporation, in each case, until thereafter changed or amended as provided therein or by applicable Law. At the Final Merger Effective Time, the Governing Documents of Merger Sub II as in effect immediately prior to the Final Merger Effective Time shall be the Governing Documents of the Surviving Subsidiary Company, in each case, until thereafter changed or amended as provided therein or by applicable Law (except that all references therein to Merger Sub II shall be changed to refer to “Allurion Technologies, LLC”).

 

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(viii) From and after the Intermediate Merger Effective Time, the directors and officers of the Company immediately prior to the Intermediate Merger Effective Time shall be the initial directors and officers of the Intermediate Surviving Corporation, each to hold office in accordance with the Governing Documents of the Intermediate Surviving Corporation until such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of such Person’s death, resignation or removal in accordance with the Governing Documents of the Intermediate Surviving Corporation. From and after the Final Merger Effective Time, the Persons identified as the initial managers and officers of the Surviving Subsidiary Company as set forth on Section 2.1(a)(viii) of the Company Disclosure Schedule, shall be the managers and officers (and in the case of such officers, holding such positions as set forth across such Person’s name on Section 2.1(a)(viii) of the Company Disclosure Schedule) of the Surviving Subsidiary Company, each to hold office in accordance with the Governing Documents of the Surviving Subsidiary Company until their respective successors shall have been duly elected or appointed and qualified, or until the earlier of such Person’s death, resignation or removal in accordance with the Governing Documents of the Surviving Subsidiary Company.

 

(ix) From and after the CPUH Merger Effective Time, the Persons identified as the initial directors and officers of the Surviving Corporation after the CPUH Merger Effective Time, in accordance with the provisions of Section 5.17, shall be the directors and officers (and in the case of such officers, holding such positions as set forth across such Person’s name on Section 5.17(d) of the Company Disclosure Schedules), respectively, of the Surviving Corporation, each to hold office in accordance with the Governing Documents of the Surviving Corporation until such director’s or officer’s successor is duly elected or appointed and qualified, or until the earlier of such Person’s death, resignation or removal.

 

(x) Immediately prior to the CPUH Merger Effective Time, by virtue of the CPUH Merger and without any action on the part of any Party or any other Person, each CPUH Unit outstanding immediately prior to the CPUH Merger Effective Time shall be automatically detached and the holder thereof shall be deemed to hold one share of Class A Common Stock and one-quarter of a CPUH Warrant in accordance with the terms of the applicable CPUH Unit, which such underlying shares of Class A Common Stock and CPUH Warrants shall be adjusted in accordance with the applicable terms of Section 2.1(a)(xi) and Section 2.1(a)(xii), respectively.

 

(xi) Immediately following the separation of each CPUH Unit in accordance with Section 2.1(a)(x) and at the CPUH Merger Effective Time, by virtue of the CPUH Merger and without any action on the part of any Party or any other Person, each share of Class A Common Stock issued and outstanding immediately prior to the CPUH Merger Effective Time (other than the CPUH Dissenting Shares, the CPUH Redemption Shares and the shares of CPUH Common Stock to be cancelled and extinguished in accordance with Section 2.1(a)(xiii) below) shall automatically be cancelled and extinguished and be converted into the right to receive 1.420455 shares of Pubco Common Stock (collectively, the “Aggregate CPUH Merger Consideration”). At the CPUH Merger Effective Time, by virtue of the CPUH Merger and without any action on the part of any holder thereof, each share of capital stock of Pubco issued and outstanding immediately prior to the CPUH Merger Effective Time shall be redeemed by Pubco for par value. From and after the CPUH Merger Effective Time, the holder(s) of certificates (the “CPUH Certificates”), if any, evidencing ownership of shares of CPUH Common Stock and the shares of CPUH Common Stock held in book-entry form issued and outstanding immediately prior to the CPUH Merger Effective Time shall each cease to have any rights with respect to such shares of CPUH Common Stock except as otherwise expressly provided for herein or under applicable Law. Notwithstanding the foregoing or anything to the contrary herein, the aggregate number of shares of Pubco Common Stock that each holder of CPUH Common Stock will have a right to receive pursuant to this Section 2.1(a)(xi) will be rounded down to the nearest whole share.

 

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(xii) Immediately following the separation of each CPUH Unit in accordance with Section 2.1(a)(x) and at the CPUH Merger Effective Time, by virtue of the CPUH Merger and without any action on the part of any Party or any other Person, each CPUH Public Warrant outstanding immediately prior to the CPUH Merger Effective Time shall cease to be a warrant with respect to CPUH Common Stock and shall be assumed by the Surviving Corporation pursuant to the Warrant Assumption Agreement (each, a “Pubco Warrant”) on substantially the same terms as were in effect immediately prior to the CPUH Merger Effective Time under the terms of the Warrant Agreement (including any repurchase rights and cashless exercise provisions). CPUH, Pubco and the Surviving Corporation shall take all lawful action to effect the aforesaid provisions of this Section 2.1(a)(xii), including seeking the Requisite CPUH Warrantholder Approval and entering into the Warrant Assumption Agreement.

 

(xiii) At the CPUH Merger Effective Time, by virtue of the CPUH Merger and without any action on the part of any Party or any other Person, each share of CPUH Common Stock held immediately prior to the CPUH Merger Effective Time by CPUH as treasury stock or held by any Subsidiary of CPUH shall be canceled and extinguished, and no consideration shall be paid with respect thereto.

 

(xiv) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger and without any action on the part of any Party or any other Person (including the Company or Merger Sub I), each share of capital stock of Merger Sub I issued and outstanding immediately prior to the Intermediate Merger Effective Time shall be converted into one share of common stock, par value $0.0001, of the Intermediate Surviving Corporation.

 

(xv) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger and without any action on the part of any Party or any other Person, each Company Share (other than the Company Shares cancelled in accordance with clause (xvi) and any Company Dissenting Shares) issued and outstanding as of immediately prior to the Intermediate Merger Effective Time (including Company Shares issued in the Convertible Notes Conversion) shall be canceled and extinguished and be converted into the right to receive a number of shares of Pubco Common Stock equal to the Merger Consideration Per Fully Diluted Share. From and after the Intermediate Merger Effective Time, the holder(s) of certificates (the “Company Certificates” and, together with the CPUH Certificates, the “Certificates”), if any, evidencing ownership of Company Shares and the Company Shares held in book-entry form issued and outstanding immediately prior to the Intermediate Merger Effective Time shall each cease to have any rights with respect to such Company Shares except as otherwise expressly provided for herein or under applicable Law.

 

(xvi) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger and without any action on the part of any Party or any other Person, each Company Share held immediately prior to the Intermediate Merger Effective Time by the Company as treasury stock or held by any Subsidiary of the Company shall be canceled and extinguished, and no consideration shall be paid with respect thereto, and the shares described in this clause (xvi) shall not constitute “Company Shares” hereunder.

 

(xvii) At the Final Merger Effective Time, by virtue of the Final Merger and without any action on the part of any Party or any other Person (including the Surviving Corporation, the Intermediate Surviving Corporation or Merger Sub II), (A) each share of common stock, par value $0.0001 per share, of the Intermediate Surviving Corporation issued and outstanding immediately prior to the Final Merger Effective Time shall be cancelled and shall cease to exist and (B) each limited liability company interest of Merger Sub II issued and outstanding immediately prior to the Final Merger Effective Time shall remain outstanding as a limited liability company interest of the Surviving Subsidiary Company.

 

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(xviii) At the Final Merger Effective Time, by virtue of the Final Merger and without any action on the part of any Party or any other Person, each share of common stock, par value $0.0001 per share, of the Intermediate Surviving Corporation held immediately prior to the Final Merger Effective Time by the Intermediate Surviving Corporation as treasury stock or held by any Subsidiary of the Intermediate Surviving Corporation shall be canceled and extinguished, and no consideration shall be paid with respect thereto.

 

(xix) Notwithstanding clause (xi) above or any other provision of this Agreement to the contrary, if there are any CPUH Redemption Shares, such CPUH Redemption Shares shall not be exchanged pursuant to clause (xi) above but shall immediately prior to the CPUH Merger Effective Time be canceled and shall cease to exist and shall thereafter be redeemed for the consideration, and on the terms and subject to the conditions and limitations, set forth in this Agreement, the CPUH Organizational Documents, the Trust Agreement and the Registration Statement/Proxy Statement.

 

(b) The Amended and Restated Certificate of Incorporation of the Surviving Corporation and the Amended and Restated Bylaws of the Surviving Corporation, in the forms mutually agreed upon by CPUH, Pubco and the Company, shall be the certificate of incorporation and bylaws of the Surviving Corporation from and after the CPUH Merger Effective Time, until thereafter amended as provided therein and under the DGCL.

 

(c) The Mergers shall have the effects set forth in this Agreement and the applicable provisions of the DGCL and DLLCA, as applicable.

 

Section 2.2 Contingency Consideration

 

(a) Following the Closings, subject to the terms and conditions set forth herein, in addition to the consideration to be received pursuant to Section 2.1(a)(xv), 2.5 and 2.6 and as part of the overall Aggregate Consideration, each Eligible Company Equityholder (in accordance with his, her or its Contingency Pro Rata Shares) shall be issued additional shares of Pubco Common Stock (the “Contingency Shares”), as follows:

 

(i) 4,500,000 Contingency Shares, in the aggregate, if, from the period beginning on the date on which the Surviving Corporation’s registration statement on Form S-1 with respect to the resale of any Pubco Common Stock issued pursuant to the PIPE Financing is declared effective by the SEC until the date which is five (5) calendar years after the Closing Date (such period, the “Earnout Period”), the volume weighted average price of shares of Pubco Common Stock on NYSE, or any other national securities exchange on which the shares of Pubco Common Stock are then traded (“VWAP”), is greater than or equal to fifteen dollars ($15.00) over any twenty (20) trading days within any consecutive thirty (30) trading day period (the “First Share Target”) (such Contingency Shares, the “First Level Contingency Consideration”);

 

(ii) an additional 4,500,000 Contingency Shares, in the aggregate, if, during the Earnout Period, the VWAP is greater than or equal to twenty dollars ($20.00) over any twenty (20) trading days within any consecutive thirty (30) trading day period (the “Second Share Target” and collectively with the First Share Target, the “Share Targets”) (such Contingency Shares, the “Second Level Contingency Consideration” and, collectively with the First Level Contingency Consideration, the “Contingency Consideration”).

 

For the avoidance of doubt, each of the First Level Contingency Consideration and the Second Level Contingency Consideration is issuable only once in accordance with the terms of this Section 2.2(a), and the maximum amount of Contingency Consideration is 9,000,000 Contingency Shares, in the aggregate.

 

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(b) If either of the Share Targets shall have been achieved, then within ten (10) Business Days following the achievement of the applicable Share Target (which may be achieved at the same time or over the same or overlapping trading days), the Surviving Corporation shall issue the applicable Contingency Consideration to each Eligible Company Equityholder as specified on the Allocation Schedule. For the avoidance of doubt, in the event that neither of the Share Targets shall have been achieved, no Eligible Company Equityholder shall be entitled to any Contingency Consideration.

 

(c) Following the Closings, if a Change of Control of the Surviving Corporation shall occur during the Earnout Period, then any Contingency Consideration that remains unissued as of immediately prior to the consummation of such Change of Control shall immediately become payable and the Eligible Company Equityholders shall be entitled to receive such Contingency Consideration prior to the consummation of such Change of Control. Any Contingency Consideration shall be payable to the Eligible Company Equityholders as specified on the Allocation Schedule. For the purposes of this Agreement, a “Change of Control” shall have been deemed to occur with respect to the Surviving Corporation upon:

 

(i) the sale, lease, license, distribution, dividend or transfer, in a single transaction or a series of related transactions, of more than fifty percent (50%) of the assets of the Surviving Corporation and its Subsidiaries taken as a whole; or

 

(ii) a merger, consolidation or other business combination of the Surviving Corporation (or any Subsidiary or Subsidiaries that alone or together represent more than fifty percent (50%) of the consolidated business of the Surviving Corporation at that time) or any successor or other entity holding, directly or indirectly, fifty percent (50%) or more of all the assets of the Surviving Corporation and its Subsidiaries that results in the stockholders of the Surviving Corporation (or such Subsidiary or Subsidiaries) or any successor or other entity holding, directly or indirectly, fifty percent (50%) or more of the assets of the Surviving Corporation and its Subsidiaries or the surviving entity thereof, as applicable, immediately before the consummation of such transaction or series of related transactions holding, directly or indirectly, less than fifty percent (50%) of the voting power of the Surviving Corporation (or such Subsidiary or Subsidiaries) or any successor, other entity or surviving entity thereof, as applicable, immediately following the consummation of such transaction or series of related transactions.

 

(d) The Contingency Consideration and the Share Targets shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into shares of Pubco Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Pubco Common Stock, occurring on or after the date hereof and prior to the time any such Contingency Consideration is delivered to the Eligible Company Equityholders, if any.

 

(e) The right of the Eligible Company Equityholders to receive the Contingency Consideration (i) is solely a contractual right and will not be evidenced by a certificate and does not constitute a security or other instrument, (ii) may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part, other than upon written notice to the Surviving Corporation pursuant to a Permitted Transfer, and (iii) does not give the Eligible Company Equityholders any right to receive interest payments. There is no guaranty or other assurance of any kind that any Contingency Consideration will be payable hereunder (regardless of any projections, models, forecasts or any other financial data generated by, or provided to, the Company, CPUH, Pubco, the Surviving Corporation or their respective Affiliates or Representatives). For purposes of this Agreement, “Permitted Transfer” means (A) a transfer on death by will or intestacy, (B) a transfer by instrument to an inter vivos or testamentary trust for beneficiaries upon the death of the trustee, (C) a transfer made pursuant to an order of a court of competent jurisdiction (such as in connection with divorce, bankruptcy or liquidation), (D) a transfer by a partnership or limited liability company through a distribution to its partners or members, as applicable, in each case without consideration, (E) a transfer by a Person to such Person’s Affiliate, or (F) a transfer made by operation of law (including a consolidation or merger) or as pursuant to the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity.

 

(f) The Parties agree that for U.S. federal income (and any other applicable) Tax purposes (i) the issuance of Contingency Consideration pursuant to this Section 2.2 shall be treated as an adjustment to the Aggregate Intermediate Merger Closing Merger Consideration and (ii) the issuance of the Contingency Consideration pursuant to this Section 2.2 is intended to comply with, and shall be effected in accordance with, Rev. Proc. 84-42, 1984-1 C.B. 521 (collectively, the “Contingency Consideration Tax Treatment”). The Parties shall file all Tax Returns consistent with, and take no position inconsistent with (whether in audits, Tax Returns or otherwise), the Contingency Consideration Tax Treatment unless otherwise required by a final “determination” within the meaning of Section 1313(a) of the Code.

 

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Section 2.3 Closing of the Transactions Contemplated by this Agreement. The closing of the CPUH Merger (the “CPUH Merger Closing”) shall take place at the offices of Goodwin Procter LLP, 100 Northern Avenue, Boston, MA 02210 (or electronically by exchange of the closing deliverables by the means provided in Section 8.11) immediately following the Sponsor Recapitalization and immediately prior to the filing of the CPUH Certificate of Merger, on the date which is the third (3rd) Business Day following the satisfaction (or, to the extent permitted by applicable Law, waiver) of all of the conditions set forth in Article 6 (other than those conditions that by their nature are to be satisfied at the Closings, but subject to the satisfaction or waiver of such conditions), or at such other place, date or time as CPUH and the Company may agree in writing (the “Closing Date”). The closing of the Intermediate Merger (the “Intermediate Merger Closing”) shall take place at the offices of Goodwin Procter LLP, 100 Northern Avenue, Boston, MA 02210 (or electronically by exchange of the closing deliverables by the means provided in Section 8.11) at least three (3) hours after, but on the same day as, the CPUH Merger Closing, and immediately prior to the filing of the Intermediate Certificate of Merger, on the Closing Date, or at such other place, date or time as CPUH and the Company may agree in writing. The closing of the Final Merger (the “Final Merger Closing” and, collectively with the CPUH Merger Closing and the Intermediate Merger Closing, the “Closings”) shall take place at the offices of Goodwin Procter LLP, 100 Northern Avenue, Boston, MA 02210 (or electronically by exchange of the closing deliverables by the means provided in Section 8.11) immediately following the Intermediate Merger Closing and immediately prior to the filing of the Final Merger Certificate of Merger on the Closing Date, or at such other place, date or time as CPUH and the Company may agree in writing.

 

Section 2.4 Allocation Schedule. No later than five (5) Business Days prior to the Closing Date, the Company shall deliver to CPUH an allocation schedule (the “Allocation Schedule”) setting forth (a) the number of Equity Securities held by each Company Stockholder or holder of Company Options, Company RSU Awards, Company Warrants and Company Convertible Notes, as applicable, the number of shares of Company Common Stock subject to each Company Option, Company RSU Award, Company Warrant or Company Convertible Note, as applicable, held by each holder thereof as of immediately prior to the Intermediate Merger Effective Time, as well as whether (i) each such Company Option will be a Vested Company Option or an Unvested Company Option as of immediately prior to the Intermediate Merger Effective Time and (ii) each such Company RSU Award will be a Vested Company RSU Award or an Unvested Company RSU Award as of immediately prior to the Intermediate Merger Effective Time, and, in the case of the Company Options and the Company Warrants, as applicable, the exercise price thereof, as well as reasonably detailed calculations with respect to the components and subcomponents thereof, (b) the number of shares of Pubco Common Stock that will be subject to each Rollover Option, Rollover RSU and Assumed Warrant and the exercise price of each such Rollover Option and Company Warrant at the Intermediate Merger Effective Time, in each case, determined in accordance with Section 2.5 and Section 2.6, as applicable, as well as reasonably detailed calculations with respect to the components and subcomponents thereof, (c) the portion of the Aggregate Intermediate Merger Closing Merger Consideration allocated to each Company Stockholder pursuant to Section 2.1(a)(xv), as well as reasonably detailed calculations with respect to the components and subcomponents thereof, (d) the portion of the Aggregate Intermediate Merger Closing Merger Consideration allocated to each holder of a Company Convertible Note pursuant to Section 2.6(b), as well as reasonably detailed calculations with respect to the components and subcomponents thereof and (e) the Contingency Pro Rata Share for each Eligible Company Equityholder, in the event that any Contingency Consideration becomes payable, as well as reasonably detailed calculations with respect to the components and subcomponents thereof. The Company will review any comments to the Allocation Schedule provided by CPUH or any of its Affiliates or Representatives and consider in good faith and incorporate any reasonable comments proposed by CPUH or any of its Affiliates or Representatives to correct inaccuracies or otherwise clarify any information contained in the Allocation Schedule. Notwithstanding the foregoing or anything to the contrary herein, the aggregate number of shares of Pubco Common Stock that each Company Stockholder will have a right to receive pursuant to Section 2.1(a)(xv) will be rounded down to the nearest whole share.

 

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Section 2.5 Treatment of Company Equity Awards.

 

(a) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 2.5(d)), each Company Option (whether a Vested Company Option or an Unvested Company Option) shall cease to represent the right to purchase shares of Company Common Stock and shall be converted into an option to purchase shares of Pubco Common Stock (each, a “Rollover Option”) in an amount, at an exercise price and subject to such terms and conditions determined as set forth below. Each Rollover Option shall (i) be exercisable for, and represent the right to purchase, a number of shares of Pubco Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to the corresponding Company Option immediately prior to the Intermediate Merger Effective Time, multiplied by (B) the Intermediate Merger Exchange Ratio, and (ii) have an exercise price per share of Pubco Common Stock (rounded up to the nearest whole cent) subject to such Rollover Option equal to (A) the exercise price per share of Company Common Stock applicable to the corresponding Company Option immediately prior to the Intermediate Merger Effective Time, divided by (B) the Intermediate Merger Exchange Ratio. Each Rollover Option shall be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Company Option immediately prior to the Intermediate Merger Effective Time, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement or the Ancillary Documents or for such other immaterial administrative or ministerial changes as the Pubco Board (or the compensation committee of the Pubco Board) may determine in good faith are appropriate to effectuate the administration of the Rollover Options. Such conversion shall occur in a manner intended to comply with (x) for any Rollover Option that is an Incentive Stock Option, the requirements of Section 424 of the Code, and (y) in each case, the requirements of Section 409A of the Code.

 

(b) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 2.5(d)), each Company RSU Award (whether a Vested Company RSU Award or an Unvested Company RSU Award) shall be assumed by Pubco and converted into a restricted stock unit award denominated in shares of Pubco Common Stock (each, a “Rollover RSU”). Each Rollover RSU shall cover that number of shares of Pubco Common Stock equal to (A) the number of shares of Company Common Stock underlying the corresponding Company RSU Award immediately prior to the Intermediate Merger Effective Time, multiplied by (B) the Intermediate Merger Exchange Ratio (rounded down to the nearest whole share). Each Rollover RSU shall be subject to the same terms and conditions (including applicable vesting and forfeiture provisions) that applied to the corresponding Company RSU Award immediately prior to the Intermediate Merger Effective Time, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement or the Ancillary Documents or for such other immaterial administrative or ministerial changes as the Pubco Board (or the compensation committee of the Pubco Board) may determine in good faith are appropriate to effectuate the administration of the Rollover RSU.

 

(c) At the Intermediate Merger Effective Time, Pubco shall assume the Company Equity Plans and (i) all Company Options and Company RSU Awards (whether vested or unvested) shall no longer be outstanding and shall automatically be converted into Rollover Options or Rollover RSUs, as applicable, and each holder thereof shall cease to have any rights with respect thereto or under the Company Equity Plans, except as otherwise expressly provided for in this Section 2.5, and (ii) all shares of Company Common Stock reserved for issuance pursuant to the Company Equity Plans shall automatically be cancelled.

 

(d) Prior to the Intermediate Merger Closing, the Company shall (i) deliver to the holders of the Company Options and Company RSU Awards notices, in a form reasonably acceptable to CPUH, setting forth the effect of the transactions contemplated by this Agreement on such holders’ rights and describing the treatment of such awards in accordance with this Section 2.5, and (ii) take, or cause to be taken, all necessary or appropriate actions under the Company Equity Plans (and the underlying grant, award or similar agreements) or otherwise to give effect to the provisions of this Section 2.5 (including, by way of example, obtaining any necessary consents, waivers or releases, adopting applicable resolutions, and amending the terms of the Company Equity Plans or any outstanding awards, in each case, to the extent required under the terms of the applicable Company Equity Plans).

  

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Section 2.6 Treatment of Company Warrants and Company Convertible Notes.

 

(a) At the Intermediate Merger Effective Time, by virtue of the Intermediate Merger, each Company Warrant, to the extent outstanding and unexercised, shall automatically, without any action on the part of the holder thereof, be converted into a warrant to acquire a number of shares of Pubco Common Stock, in an amount and at an exercise price and subject to such terms and conditions, in each case, as set forth on the Allocation Schedule (each such resulting warrant, an “Assumed Warrant”). Each Assumed Warrant shall be subject to the same terms and conditions as were applicable to such corresponding Company Warrant immediately prior to the Intermediate Merger Effective Time (including applicable vesting conditions), except (i) each Assumed Warrant will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Pubco Common Stock equal to the product of the number of Company Shares that were issuable upon exercise of such Company Warrant immediately prior to the Intermediate Merger Effective Time multiplied by the Intermediate Merger Exchange Ratio, rounded down to the nearest whole number of shares of Pubco Common Stock, (ii) the per share exercise price for the shares of Pubco Common Stock issuable upon exercise of such Assumed Warrant will be equal to the quotient determined by dividing the exercise price per Company Share at which such Company Warrant was exercisable immediately prior to the Intermediate Merger Effective Time by the Intermediate Merger Exchange Ratio, rounded up to the nearest whole cent, (iii) for terms rendered inoperative by reason of the transactions contemplated by this Agreement (including any anti-dilution or other similar provisions that adjust the number of underlying shares that could become exercisable subject to such Company Warrant) and (iv) such other changes as the Pubco Board (or the compensation committee of the Pubco Board) may determine in good faith are appropriate to preserve the economic intent of the Company Warrants.

 

(b) Immediately prior to the Intermediate Merger Effective Time, the Company shall cause the outstanding principal and accrued but unpaid interest on the Company Convertible Notes to be converted into the applicable number of shares of Company Common Stock provided for under the terms of such Company Convertible Note (the “Convertible Notes Conversion”). All of the Company Convertible Notes converted into shares of Company Common Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Convertible Notes shall thereafter cease to have any rights with respect to the Company Convertible Notes. Immediately following the Convertible Notes Conversion, at the Intermediate Merger Effective Time and by virtue of the Intermediate Merger, all shares of Company Common Stock issued in the Convertible Notes Conversion shall be canceled and converted into the right to receive Pubco Common Stock pursuant to Section 2.1(a)(xv).

 

Section 2.7 Closing Actions and Deliverables

 

(a) At least three (3) Business Days prior to the Closing Date, CPUH shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) (it being understood and agreed, for the avoidance of doubt, that Continental Stock Transfer & Trust Company shall be deemed to be acceptable to the Company) and enter into an exchange agent agreement with the Exchange Agent (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Company Certificates, if any, representing the Company Shares, and each Company Share held in book-entry form on the stock transfer books of the Company immediately prior to the Intermediate Merger Effective Time, in each case for the portion of the Aggregate Intermediate Merger Closing Merger Consideration issuable in respect of such Company Shares pursuant to Section 2.1(a)(xv), and on the terms and subject to the other conditions set forth in this Agreement and (ii) CPUH Certificates, if any, representing the Class A Common Stock, and each share of Class A Common Stock held in book-entry form on the stock transfer books of CPUH immediately prior to the CPUH Merger Effective Time, in each case for the portion of the CPUH Merger Consideration issuable in respect of such shares of Class A Common Stock held pursuant to Section 2.1(a)(xi), and on the terms and subject to the other conditions set forth in this Agreement.

 

(b) At least three (3) Business Days prior to the Closing Date, the Company and Pubco shall mail or otherwise deliver, or shall cause to be mailed or otherwise delivered, to the Company Stockholders and each Pre-Closing CPUH Stockholder a letter of transmittal in a customary form to be mutually agreed between the Parties and related instructions (which instructions shall specify that the delivery shall be effected, and the risk of loss and title shall pass, only upon proper transfer of each share to the Exchange Agent (a “Letter of Transmittal”)).

 

(c) At or prior to the CPUH Merger Effective Time, Pubco shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the applicable Pre-Closing CPUH Stockholders and for exchange in accordance with this Section 2.7 through the Exchange Agent, evidence of Pubco Common Stock in book-entry form representing the portion of the Aggregate CPUH Merger Consideration issuable pursuant to Section 2.1(a)(xi) in exchange for the shares of Class A Common Stock outstanding immediately prior to the CPUH Merger Effective Time. At or prior to the Intermediate Merger Effective Time, Pubco shall deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the Company Stockholders and for exchange in accordance with this Section 2.7 through the Exchange Agent, evidence of Pubco Common Stock in book-entry form representing the portion of the Aggregate Intermediate Merger Closing Merger Consideration issuable pursuant to Section 2.1(a)(xv) in exchange for the applicable Company Shares outstanding immediately prior to the Intermediate Merger Effective Time. All shares in book-entry form representing the portion of the Aggregate CPUH Merger Consideration and Aggregate Intermediate Merger Closing Merger Consideration issuable pursuant to Section 2.1(a)(xi) and Section 2.1(a)(xv), respectively, deposited with the Exchange Agent shall be referred to in this Agreement as the “Exchange Fund”.

 

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(d) Each Company Stockholder whose Company Shares have been converted into the right to receive a portion of the Aggregate Intermediate Merger Closing Merger Consideration pursuant to Section 2.1(a)(xv) shall be entitled to receive the portion of the Aggregate Intermediate Merger Closing Merger Consideration to which he, she or it is entitled on the date provided in Section 2.7(f) upon (i) surrender of a Company Certificate representing Company Shares, if any (or affidavit of loss, in lieu thereof, in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any documents or agreements required by the Letter of Transmittal), to the Exchange Agent, or (ii) delivery of an “agent’s message” (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Company Common Stock held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any documents or agreements required by the Letter of Transmittal), to the Exchange Agent.

 

(e) Each Pre-Closing CPUH Stockholder whose shares of Class A Common Stock have been converted into the right to receive a portion of the Aggregate CPUH Merger Consideration pursuant to Section 2.1(a)(xi) shall be entitled to receive the portion of the Aggregate CPUH Merger Consideration to which he, she or it is entitled on the date provided in Section 2.7(f) upon (i) surrender of a CPUH Certificate representing CPUH Common Stock (which, if applicable, may be the certificates that formerly represented shares of Class B Common Stock that converted into such shares of Class A Common Stock pursuant to the Sponsor Recapitalization), if any (or affidavit of loss, in lieu thereof, in the form required by the Letter of Transmittal), together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any documents or agreements required by the Letter of Transmittal), to the Exchange Agent, or (ii) delivery of an “agent’s message” (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Class A Common Stock held in book-entry form, together with the delivery of a properly completed and duly executed Letter of Transmittal (including, for the avoidance of doubt, any documents or agreements required by the Letter of Transmittal), to the Exchange Agent.

 

(f) If a properly completed and duly executed Letter of Transmittal, together with any Certificates (or affidavit of loss, in lieu thereof, in the form required by the Letter of Transmittal) or an “agent’s message” (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request), as applicable, is delivered to the Exchange Agent in accordance with Section 2.7(d) or Section 2.7(e), as applicable, (i) at least one (1) Business Day prior to the Closing Date, then Pubco and the Company (or the Surviving Corporation or the Surviving Subsidiary Company, as applicable) shall take all necessary actions to cause the applicable portion of the Aggregate Intermediate Merger Closing Merger Consideration or Aggregate CPUH Merger Consideration to be issued to the applicable Company Stockholder or Pre-Closing CPUH Stockholder, respectively, in book-entry form on the Closing Date, or (ii) less than one (1) Business Day prior to or on or after the Closing Date, then Pubco and the Company (or the Surviving Corporation or the Surviving Subsidiary Company, as applicable) shall take all necessary actions to cause the applicable portion of the Aggregate Intermediate Merger Closing Merger Consideration or Aggregate CPUH Merger Consideration to be issued to the applicable Company Stockholder or Pre-Closing CPUH Stockholder, respectively, in book-entry form within two (2) Business Days after such delivery.

 

(g) If any portion of the Aggregate Intermediate Merger Closing Merger Consideration or Aggregate CPUH Merger Consideration is to be issued to a Person other than the Company Stockholder or Pre-Closing CPUH Stockholder, as applicable, in whose name the surrendered Certificate is, or the transferred Company Shares or shares of Class A Common Stock, as applicable, in book-entry form are, registered, it shall be a condition to the issuance of the applicable portion of the Aggregate Intermediate Merger Closing Merger Consideration or Aggregate CPUH Merger Consideration, as applicable, that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, or such Company Shares or shares of Class A Common Stock, as applicable, in book-entry form shall be properly transferred, and (ii) the Person requesting such consideration pay to the Exchange Agent any transfer or similar Taxes required as a result of such consideration being issued to a Person other than the registered holder of such Certificate or Company Shares or shares of Class A Common Stock, as applicable, in book-entry form, or establish to the satisfaction of the Exchange Agent that such transfer or similar Taxes have been paid or are not payable.

 

(h) No interest will be paid or accrued on the Aggregate Intermediate Merger Closing Merger Consideration or the Aggregate CPUH Merger Consideration (or any portion thereof).

 

(i) From and after the CPUH Merger Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.7, each share of Class A Common Stock (other than, for the avoidance of doubt, the CPUH Redeemed Shares, the CPUH Dissenting Shares and the shares of CPUH Common Stock cancelled in accordance with Section 2.1(a)(xiii)) shall solely represent the right to receive the portion of the Aggregate CPUH Merger Consideration to which such share of Class A Common Stock is entitled pursuant to Section 2.1(a)(xi).

 

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(j) From and after the Intermediate Merger Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 2.7, each Company Share (other than, for the avoidance of doubt, the Company Dissenting Shares and the Company Shares cancelled in accordance with Section 2.1(a)(xvi)) shall solely represent the right to receive the portion of the Aggregate Intermediate Merger Closing Merger Consideration to which such Company Share is entitled pursuant to Section 2.1(a)(xv).

 

(k) At the CPUH Merger Effective Time, the stock transfer books of CPUH shall be closed and there shall be no transfers of Class A Common Stock that were outstanding immediately prior to the CPUH Merger Effective Time.

 

(l) At the Intermediate Merger Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Shares that were outstanding immediately prior to the Intermediate Merger Effective Time.

 

(m) Any portion of the Exchange Fund that remains unclaimed by the Pre-Closing CPUH Stockholders or Company Stockholders, as applicable, twelve (12) months following the Closing Date shall be delivered by the Exchange Agent to the Surviving Corporation or as otherwise instructed by the Surviving Corporation, and any Pre-Closing CPUH Stockholder or Company Stockholder, respectively, as of immediately prior to the CPUH Merger Effective Time or the Intermediate Merger Effective Time, respectively, who has not exchanged his, her or its shares of Class A Common Stock or Company Shares, as applicable, for the applicable portion of the Aggregate CPUH Merger Consideration or the Aggregate Intermediate Merger Closing Merger Consideration, respectively, in accordance with this Section 2.7 prior to that time shall thereafter look only to the Surviving Corporation for the issuance of the applicable portion of the Aggregate CPUH Merger Consideration or Aggregate Intermediate Merger Closing Merger Consideration, respectively, without any interest thereon. None of CPUH, Merger Sub I, Merger Sub II, Pubco, the Surviving Corporation, the Intermediate Surviving Corporation, the Surviving Subsidiary Company, the Exchange Agent or any of their respective Affiliates shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat or similar Law. Any portion of the Aggregate CPUH Merger Consideration or the Aggregate Intermediate Merger Closing Merger Consideration, as applicable, remaining unclaimed by the Pre-Closing CPUH Stockholders or the Company Stockholders, as applicable, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.

 

(n) At the Closings:

 

(i) CPUH shall deliver or cause to be delivered to the Company (A) the Investor Rights Agreement, duly executed by the stockholders of CPUH listed on Section 2.7(n)(i) of the CPUH Disclosure Schedules, (B) the written resignations of all of the directors, managers and officers of CPUH, Merger Sub I and Merger Sub II, effective as of the CPUH Merger Effective Time, Intermediate Merger Effective Time or Final Merger Effective Time, as applicable, and (C) a certificate signed by an officer of CPUH, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been fulfilled; and

 

(ii) the Company shall deliver or cause to be delivered to CPUH (A) the Investor Rights Agreement, duly executed by Pubco and the Persons listed on Section 2.7(n)(ii) of the Company Disclosure Schedules, (B) the written resignations of all the directors and officers of Pubco (other than those Persons identified as directors or officers of the Surviving Corporation immediately after the CPUH Effective Time), effective as of the CPUH Effective Time, (C) a duly executed certificate substantially in the form described in Treasury Regulations Section 1.1445-2(c)(3), together with a notice to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) and (D) a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been fulfilled.

 

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Section 2.8 Withholding. CPUH, Pubco, the Exchange Agent and any of their Affiliates shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any consideration payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Tax Law. To the extent that amounts are so withheld and remitted to the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Upon becoming aware of any such withholding obligation, CPUH and Pubco, as applicable, shall use reasonable best efforts to give reasonable advance notice of such withholding to the Company (other than where such deduction or withholding is either (i) in respect of amounts treated as compensation under the Code, (ii) due to a failure of a Person to provide any applicable tax forms required under the Letter of Transmittal (or properly claim an exemption in respect of backup withholding on such tax forms) or (iii) due to a failure of the Company to comply with Section 2.7(n)(ii) of this Agreement) and shall reasonably cooperate with the Company, to eliminate or reduce any such required deduction or withholding.

 

Section 2.9 Dissenting Shares.

 

(a) Notwithstanding any provision of this Agreement to the contrary, Company Shares issued and outstanding immediately prior to the Intermediate Merger Effective Time and held by a holder of Company Shares who has not voted in favor of adoption of this Agreement or consented thereto in writing and who is entitled to demand and has properly exercised appraisal rights of such shares in accordance with Section 262 of the DGCL (such Company Shares being referred to collectively as the “Company Dissenting Shares” until such time as such holder fails to perfect or otherwise waives, withdraws, or loses such holder’s appraisal rights under the DGCL with respect to such shares) shall not be converted into a right to receive a portion of the Aggregate Intermediate Merger Closing Merger Consideration and, if applicable, a portion of the Contingency Shares, but instead shall be entitled to only such rights as are granted by Section 262 of the DGCL; providedhowever, that if, after the Intermediate Merger Effective Time, such holder fails to perfect, waives, withdraws, or loses such holder’s right to appraisal pursuant to Section 262 of the DGCL, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such Company Shares shall be treated as if they had been converted as of the Intermediate Merger Effective Time into the right to receive the applicable portion of the Aggregate Intermediate Merger Closing Merger Consideration and, if applicable, the applicable portion of the Contingency Shares, in each case in accordance with Section 2.1 and Section 2.2, respectively, without interest thereon, upon transfer of such shares. The Company shall provide CPUH prompt written notice of any demands received by the Company for appraisal of Company Shares, any waiver or withdrawal of any such demand, and any other demand, notice, or instrument delivered to the Company prior to the Intermediate Merger Effective Time that relates to such demand. Except with the prior written consent of CPUH (which shall not be unreasonably conditioned, withheld, delated or denied), the Company shall not make any payment with respect to, or settle or compromise, any such demands.

 

(b) Notwithstanding any provision of this Agreement to the contrary, shares of CPUH Common Stock issued and outstanding immediately prior to the CPUH Merger Effective Time and held by a holder of CPUH Common Stock who has not voted in favor of adoption of this Agreement or consented thereto in writing and who is entitled to demand and has properly exercised appraisal rights of such shares in accordance with Section 262 of the DGCL (such shares being referred to collectively as the “CPUH Dissenting Shares” until such time as such holder fails to perfect or otherwise waives, withdraws, or loses such holder’s appraisal rights under the DGCL with respect to such shares) shall not be converted into a right to receive a portion of the Aggregate CPUH Merger Consideration, but instead shall be entitled to only such rights as are granted by Section 262 of the DGCL; providedhowever, that if, after the CPUH Merger Effective Time, such holder fails to perfect, waives, withdraws, or loses such holder’s right to appraisal pursuant to Section 262 of the DGCL, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such shares of CPUH Common Stock shall be treated as if they had been converted as of the CPUH Merger Effective Time into the right to receive the applicable portion of the Aggregate CPUH Merger Consideration in accordance with Section 2.1 and Section 2.2, respectively, without interest thereon, upon transfer of such shares. CPUH shall provide the Company prompt written notice of any demands received by CPUH for appraisal of CPUH Common Stock, any waiver or withdrawal of any such demand, and any other demand, notice, or instrument delivered to CPUH prior to the CPUH Merger Effective Time that relates to such demand. Except with the prior written consent of the Company (which shall not be unreasonably conditioned, withheld, delated or denied), CPUH shall not make any payment with respect to, or settle or compromise, any such demands.

 

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Article 3
REPRESENTATIONS AND WARRANTIES RELATING TO THE COMPANY and pubco

 

Subject to Section 8.8, except as set forth on the Company Disclosure Schedules, each of the Company and Pubco hereby represents and warrants to the CPUH Parties, as of the date hereof and as of the Closing Date, as follows:

 

Section 3.1 Organization and Qualification.

 

(a) The Company and its Subsidiaries (including Pubco) are corporations duly organized, validly existing and in good standing under the Laws of their respective jurisdictions of incorporation. The Company and its Subsidiaries (including Pubco) have the requisite corporate power and authority to own, lease and operate their properties and assets and to carry on the Business as presently conducted, except where the failure to have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

(b) True and complete copies of the Governing Documents of the Company and its Subsidiaries (including Pubco) have been made available to CPUH, in each case, as amended and in effect as of the date of this Agreement. The Governing Documents of the Company and its Subsidiaries (including Pubco) are in full force and effect and neither the Company nor its Subsidiaries (including Pubco) is in breach or violation of any provision set forth in its Governing Documents.

 

(c) The Company and its Subsidiaries (including Pubco) are duly qualified or licensed to transact business and are in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in each jurisdiction in which the property and assets owned, leased or operated by them, or the nature of the business conducted by them, makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing (or the equivalent thereof) would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

Section 3.2 Capitalization.

 

(a) Section 3.2(a) of the Company Disclosure Schedules sets forth, as of the date of this Agreement, a true and complete statement of (i) the number and class or series (as applicable) of all of the Equity Securities of the Company (1) authorized by the Company and (2) issued and outstanding and the identity of the Persons that are the record and beneficial owners thereof (and no such owner is a Subsidiary of the Company), (ii) with respect to each Company Option, Company RSU Award and Company Warrant, as applicable, (A) the date of grant, (B) any applicable exercise (or similar) price, (C) the expiration date, (D) any applicable vesting schedule (including acceleration provisions), (E) the number of shares and class / series of Company Shares subject to the Company Option, Company RSU Award or Company Warrant on the date of grant, (F) the number of shares and class / series of Company Shares subject to the Company Option, Company RSU Award or Company Warrant as of the date of this Agreement, and (G) whether the Company Option is an Incentive Stock Option and (iii) with respect to each Company Convertible Note outstanding as of the date of this Agreement: (A) the name of the holder of such Company Convertible Note, (B) the principal amount and rate of interest of such Company Convertible Note and (C) the maturity date of such Company Convertible Note. All of the Company Shares have been duly authorized and validly issued and are fully paid and non-assessable. The Company Shares (1) were not issued in violation of the Governing Documents of the Company or any other Contract to which the Company is party or bound, (2) are not subject to, nor were they issued in violation of, any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, (3) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and (4) are free and clear of all Liens (other than transfer restrictions under applicable Securities Laws). Except for the Company Options, Company RSU Awards and Company Warrants set forth on Section 3.2(a) of the Company Disclosure Schedules and the Company Convertible Notes, as of the date of this Agreement, the Company has no outstanding (x) equity appreciation, phantom equity or profit participation rights, or (y) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts, in the case of each of clause (x) and (y), that would require the Company to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of the Company or any of its Subsidiaries. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of the Company Shares. No Company Shares are held by a Subsidiary. The Company Stockholders have or will have, by resolution, prior to the Convertible Notes Conversion, authorized and reserved a sufficient number of shares of Company Common Stock to provide for the Convertible Notes Conversion and have authorized the board of directors of the Company, as required, to authorize and issue such shares of Company Common Stock.

 

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(b) Other than the Equity Securities it holds in each of its Subsidiaries, the Company does not own or hold (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Securities, and the Company is not a partner or member of any partnership, limited liability company or joint venture.

 

(c) Section 3.2(c) of the Company Disclosure Schedules sets forth a list of all Indebtedness of the Company and its Subsidiaries as of the date of this Agreement, including the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement and the debtor and creditor thereof.

 

(d) Section 3.2(d) of the Company Disclosure Schedules sets forth a list of all Change of Control Payments of the Company and its Subsidiaries, identifying for each such Change of Control Payment (i) the Person eligible to receive such Change of Control Payment, (ii) the total potential amount of such Change of Control Payment, and (iii) the Contract or other arrangement pursuant to which such Change of Control Payment is payable or required to be made.

 

(e) Each Company Option and each Company RSU Award was granted in compliance in all material respects with all applicable Laws and all of the terms and conditions of the applicable Company Equity Plan, and each Company Option has (or, with respect to Company Options which have been exercised as of the date of this Agreement, had) an exercise price per share that is equal to or greater than the fair market value of a share of Company Common Stock on the date of such grant, determined in a manner consistent with Section 409A of the Code. The Company has provided or made available to CPUH correct and complete copies of all valuation reports with respect to Section 409A of the Code regarding the valuation of the fair market value of Company Common Stock used to determine the exercise price of each Company Option.

 

(f) The authorized capital stock of Pubco consists of 1,000 shares of Pubco Common Stock, 1,000 of which are issued and outstanding as of the date of this Agreement. All of the issued and outstanding shares of Pubco Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The shares of Pubco Common Stock (i) were not issued in violation of the Governing Documents of Pubco or any other Contract to which Pubco is party or bound, (ii) are not subject to, nor were they issued in violation of, any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, (iii) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and (iv) are free and clear of all Liens (other than transfer restrictions under applicable Securities Laws). As of the date of this Agreement, Pubco has no outstanding (x) equity appreciation, phantom equity or profit participation rights, or (y) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts, in the case of each of clause (x) and (y), that would require Pubco to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of Pubco or any of its Subsidiaries. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of the shares of Pubco Common Stock. No shares of Pubco Common Stock are held by a Subsidiary.

 

(g) Subject to approval of the Required Transaction Proposals, the shares of Pubco Common Stock to be issued by Pubco in connection with the transactions contemplated hereby, upon issuance in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable, and will not be subject to any preemptive rights of any other stockholder of Pubco and will (i) not be issued in violation of the Governing Documents of Pubco or any other Contract to which Pubco is party or bound, (ii) not be subject to, nor will they be issued in violation of, any preemptive rights, call option, right of first refusal or first offer, subscription rights, transfer restrictions or similar rights of any Person, (iii) have been offered, sold and issued in compliance with applicable Law, including Securities Laws, and (iv) be free and clear of all Liens (other than transfer restrictions under applicable Securities Laws).

 

Section 3.3 Authority.

 

(a) Each of the Company and Pubco has the requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. Subject to obtaining the Company Stockholder Written Consent and the Pubco Stockholder Written Consent, the execution and delivery of this Agreement, the Ancillary Documents to which the Company or Pubco is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate action on the part of the Company and Pubco, respectively. This Agreement and each Ancillary Document to which the Company and Pubco is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by the Company and Pubco, respectively, and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of the Company and Pubco, respectively (assuming that this Agreement and the Ancillary Documents to which the Company and Pubco, respectively, is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against the Company and Pubco, respectively, in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity (“Enforceability Exceptions”).

 

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(b) On or prior to the date of this Agreement, the Company Board has unanimously (a) determined that this Agreement, the Ancillary Documents to which the Company is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of the Company and the Company Stockholders, (b) approved and declared advisable this Agreement, the Ancillary Documents to which the Company is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) resolved to recommend that the Company Stockholders adopt and approve this Agreement, the Ancillary Documents to which the Company is or will be party and the transactions contemplated hereby and thereby (including the Mergers).

 

(c) On or prior to the date of this Agreement, the Pubco Board has unanimously (a) determined that this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers) are fair to, advisable and in the best interests of Pubco and the sole stockholder of Pubco, (b) approved and declared advisable this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers), and (c) resolved to recommend that the Company, as the sole stockholder of Pubco, adopt and approve this Agreement, the Ancillary Documents to which Pubco is or will be party and the transactions contemplated hereby and thereby (including the Mergers).

 

(d) Other than the Company Stockholder Approval, no other corporate proceeding on the part of the Company (including, for the avoidance of doubt, the consent of (or notice to) any equityholder (including any warrantholder or holder of any convertible note) or other holder of Equity Securities of the Company or any of its Subsidiaries or under any stockholders or similar agreement) is necessary to authorize this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Mergers).

 

(e) Other than the Pubco Stockholder Approval, no other corporate proceeding on the part of Pubco (including, for the avoidance of doubt, the consent of (or notice to) any equityholder or other holder of Equity Securities of Pubco or any of its Subsidiaries or under any stockholders or similar agreement) is necessary to authorize this Agreement, the Ancillary Documents to which Pubco is or will be a party and the transactions contemplated hereby and thereby (including the Mergers).

 

(f) Each of the Initial Company Support Stockholders is an executive officer, director, affiliate, founder or family member of a founder or holder of at least five percent (5%) of the voting equity securities of the Company, in each case, within the meaning of the SEC’s Compliance and Disclosure Interpretation 239.13.

 

Section 3.4 Subsidiaries.

 

(a) Set forth on Section 3.2(a) of the Company Disclosure Schedules is a list of the Company’s Subsidiaries, together with their respective jurisdictions of incorporation, and a true and complete statement of the number and class or series (as applicable) of all of the Equity Securities of each Subsidiary (i) authorized by such Subsidiary and (ii) issued and outstanding, together with the identity of the Persons that are the record and beneficial owners thereof.

 

(b) All of the issued share capital, stock or other voting or Equity Securities of each Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable. All of the ownership interests in each Subsidiary are owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such ownership interests) and are not subject to, nor have they been issued in violation of preemptive or similar rights. All of the Equity Securities in each Subsidiary have been offered, sold and issued in compliance with applicable Law, including federal and state Securities Laws, and all requirements set forth in (1) the Governing Documents of such Subsidiaries and (2) any other applicable Contracts governing the issuance of such Equity Securities. There are no outstanding (i) subscriptions, calls, options, warrants, rights (including preemptive rights), puts or other securities of any Subsidiary convertible into or exchangeable or exercisable for shares or voting or Equity Securities of any Subsidiary, or any other Contracts to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound obligating the Company or any Subsidiary to issue or sell any shares of, other equity interests in or debt securities of, any Subsidiary, or (ii) equity equivalents, phantom stock, options, appreciation rights, stock units, profits interests or other rights to acquire from the Company or any Subsidiary, or other obligation of the Company or any Subsidiary to issue, any shares, voting or Equity Securities or securities convertible into or exchangeable for shares or voting or Equity Securities of any Subsidiary (the items in clauses (i) and (ii) being, collectively, “Subsidiary Securities”). There are no outstanding obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities. None of the Subsidiaries owns any equity, ownership, profit, voting or similar interest in, or any interest convertible, exchangeable or exercisable for, any equity, profit, voting or similar interest in, any Person. No Subsidiary is party to any shareholders agreement, voting agreement, proxies, registration rights agreement or other similar agreements relating to its equity interests.

 

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Section 3.5 Financial Statements; Undisclosed Liabilities.

 

(a) The Company has made available to CPUH true and complete copies of the audited consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2020 and December 31, 2021 and the related audited consolidated statements of operations and comprehensive loss, redeemable convertible preferred stock and stockholders’ deficit and cash flows of the Company and its Subsidiaries for each of the years then ended (collectively, the “Audited Company Financial Statements”), and the unaudited, draft consolidated balance sheet of the Company as of September 30, 2022 and the related unaudited consolidated statement of operations of the Company and its Subsidiaries for the period then ended (the “Unaudited Company Financial Statements” and, together with the Audited Company Financial Statements, the “Company Financial Statements”). The Company Financial Statements (including the notes thereto) and, when delivered pursuant to Section 5.7, the Additional Company Financial Statements and any pro forma financial statements, (i) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) fairly present, in all material respects, as applicable, the financial position, results of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) in the case of the Audited Company Financial Statements and the Additional Company Financial Statements, when delivered pursuant to Section 5.7 only, were audited in accordance with the standards of the PCAOB and (iv) comply in all material respects with the applicable accounting requirements of the AICPA and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the date hereof (including Regulation S-X or Regulation S-K, as applicable); provided that, the Unaudited Company Financial Statements do not include all of the notes or the information contained in such notes as required by GAAP for complete financial statements and are subject to normal year-end adjustments.

 

(b) Except (i) as set forth in the Company Financial Statements, (ii) for Liabilities incurred in the ordinary course of business as of September 30, 2022 (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of the respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby, (iv) for executory obligations under contracts to which the Company or its Subsidiaries is a party (other than Liabilities for breach thereof) and (v) for Liabilities that have not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company to consummate the Mergers, the Company and its Subsidiaries have no Liabilities required by GAAP to be reflected or reserved against in a consolidated balance sheet of the Company and its Subsidiaries.

 

(c) The Company has established and maintains a system of internal controls sufficient to provide reasonable assurance that (i) all transactions are executed in accordance with management’s authorization, and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Company’s and its Subsidiaries’ assets.

 

(d) In the past three (3) years, neither the Company nor any of its Subsidiaries (including any independent auditor thereof) has received or been made aware of any written complaint, allegation, assertion or claim, written or otherwise, that there is, or has been, (i) a “significant deficiency” in the internal controls over financial reporting of the Company and its Subsidiaries, (ii) a “material weakness” in the internal controls over financial reporting of the Company and its Subsidiaries, or (iii) fraud, whether or not material, that involves management or other employees of the Company or its Subsidiaries who have a significant role in the internal controls over financial reporting of the Company and its Subsidiaries.

 

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Section 3.6 Consents and Requisite Governmental Approvals; No Violations.

 

(a) No Consent, approval, waiver or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of the Company or any of its Subsidiaries with respect to the Company’s and Pubco’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which the Company or Pubco is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement/Proxy Statement and the Resale Registration Statement and the declaration of the effectiveness thereof by the SEC, and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) such filings with and approvals of NYSE to permit Pubco Common Stock and/or Assumed Warrants, if and as applicable, to be issued in accordance with this Agreement to be listed on NYSE, (iv) filing of the Certificates of Merger, or (v) any other Consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

 

(b) Subject to the receipt of the approvals set forth in Section 3.6(a), neither the execution, delivery or performance by the Company or Pubco of this Agreement nor the Ancillary Documents to which the Company or Pubco is or will be a party, nor the consummation of the transactions contemplated hereby or thereby do or will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of the Company’s or any of its Subsidiaries’ Governing Documents, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of (A) any Material Contract, (B) any Material Permits or (C) any Real Property Leases, (iii) violate, or constitute a breach under, any Order or applicable Law to which the Company or any of its Subsidiaries or any of their respective properties or assets are bound, or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of the Company or any of its Subsidiaries, except, in the case of any of clauses (ii) through (iv) above, as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

Section 3.7 Permits.

 

The Company and its Subsidiaries have all Permits that are required to own, lease or operate their properties and assets and to conduct the Business as currently conducted, except where the failure to obtain the same would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (the “Material Permits”). Each Material Permit is in full force and effect in accordance with its terms, and no written notice of revocation, cancellation or termination of any Material Permit has been received by the Company or any of its Subsidiaries.

 

Section 3.8 Material Contracts.

 

(a) Section 3.8(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company or any of its Subsidiaries is, as of the date of this Agreement, a party or by which any of them or any of their assets is bound (each Contract required to be set forth on Section 3.8(a) of the Company Disclosure Schedules, collectively, the “Material Contracts”):

 

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(i) any Contract relating to Indebtedness of the Company or any of its Subsidiaries or to the placing of a Lien (other than any Permitted Lien) on any material assets or properties of the Company or any of its Subsidiaries;

 

(ii) any Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $1,000,000;

 

(iii) any Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate, in each case, any tangible property (other than real property), owned or controlled by the Company or any of its Subsidiaries, except for any lease or agreement under which the aggregate annual rental payments do not exceed $1,000,000;

 

(iv) any Contract with one of the Company’s top twenty (20) vendors or top (20) customers, in each case, based on the aggregate dollar value of the Company’s and its Subsidiaries’ transaction volume with such counterparty during the trailing twelve months for the period ending October 31, 2022 (other than purchase orders or statements of work entered into in the ordinary course of business consistent with past practice);

 

(v) any Contract for any material joint venture, partnership, collaboration or strategic alliance;

 

(vi) any management or advisory services Contract (excluding Contracts for employment) involving the Company or any of its Subsidiaries, in each case exceeding $300,000 individually;

 

(vii) any Contract that (A) limits or purports to limit, in any material respect, the freedom of the Company or any of its Subsidiaries to engage or compete in any line of business or with any Person or in any area or that would so limit or purport to limit, in any material respect, the operations of the Business after the Closings, (B) contains any exclusivity, “most favored nation” or similar provisions, obligations or restrictions, or (C) contains any other provisions restricting or purporting to restrict the ability of the Company or any of its Subsidiaries to sell, manufacture, develop, commercialize, test or research the Company Products, directly or indirectly through third parties, in any material respect or that would so limit, or purports to limit, in any material respect, the Business after the Closings;

 

(viii) any Contract requiring the Company or any of its Subsidiaries to guarantee the Liabilities of any Person (other than the Company or a Subsidiary) or pursuant to which any Person (other than the Company or a Subsidiary) has guaranteed the Liabilities of the Company or any of its Subsidiaries, in each case in excess of $1,000,000;

 

(ix) any Contract under which the Company or any of its Subsidiaries has, directly or indirectly, made or agreed to make any loan, advance, or assignment of payment to any Person or made any capital contribution to, or other investment in, any Person, in each case in excess of $1,000,000;

 

(x) any Contract required to be disclosed on Section 3.20 of the Company Disclosure Schedules;

 

(xi) any Contract with any Person (A) pursuant to which the Company or any of its Subsidiaries (or the Business after the Closings) may be required to pay milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events, in each case, relating to Company Products (other than the Revenue Interest Financing Agreement), or (B) under which the Company or any of its Subsidiaries grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Equity Securities of the Company or any of its Subsidiaries, any Company Product or any Company Business Intellectual Property;

 

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(xii) any Contract (A) for the employment or engagement of any Key Employee of the Company or any of its Subsidiaries, or (B) providing for any Change of Control Payment;

 

(xiii) any Contract (A) executed with any current (or, with respect to Contracts pursuant to which the Company or any of its Subsidiaries has any ongoing or future obligations, former) director, manager, officer, employee, or other individual service provider of the Company or any of its Subsidiaries that provides for severance or termination benefits in excess of $100,000, or (B) that is a collective bargaining agreement or other agreement with any labor union or other labor organization that represents any employees of the Company or any of its Subsidiaries;

 

(xiv) any Contract for the disposition of any portion of the assets or business of the Company or any of its Subsidiaries or for the acquisition by the Company or any of its Subsidiaries of the assets or business of any other Person (other than acquisitions or dispositions of inventory made in the ordinary course of business), or under which the Company or any of its Subsidiaries has any continuing obligation with respect to an “earn-out”, contingent purchase price or other contingent or deferred payment obligation;

 

(xv) any Contract pursuant to which the Company or any of its Subsidiaries (A) obtains any right to use, or covenant not to be sued under, any material Intellectual Property Right (other than any license for Off-the-Shelf Software), or (B) grants any right to use, or covenant not to be sued under, any material Intellectual Property Right;

 

(xvi) any settlement, conciliation or similar Contract (A) the performance of which would be reasonably likely to involve payments in excess of $500,000 after the date of this Agreement by the Company or any of its Subsidiaries, (B) with a Governmental Entity or which relates to alleged criminal wrongdoing, (C) that imposes, at any time in the future, any material, non-monetary obligations on the Company or any of its Subsidiaries (or Pubco or any of its Affiliates after the Closings), or (D) which requires the Company or any of its Subsidiaries to accept or concede material injunctive relief;

 

(xvii) any other Contract (including any Contract requiring any future capital commitment or capital expenditure (or series of capital expenditures)) the performance of which requires either (A) annual payments by the Company or any of its Subsidiaries in excess of $500,000, or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $1,500,000 over the life of the agreement and, in each case, that is not terminable by the Company or its Subsidiaries, as applicable, without penalty upon less than thirty (30) days’ prior written notice; and

 

(xviii) any Contract with respect to the Revenue Interest Financing, the Chardan Equity Line and the Fortress Financing, including the Revenue Interest Financing Agreement, the Fortress Bridging Agreement and the Chardan Commitment Letter.

 

(b) (i) Each Material Contract is valid and binding on the Company or its Subsidiary, as applicable, and, to the knowledge of the Company, the counterparty thereto, and is in full force and effect, and (ii) the Company and its Subsidiaries and, to the knowledge of the Company, the counterparties thereto, are not in material breach of, or default under, any Material Contract, and, to the knowledge of the Company, there are no facts or circumstances which would reasonably be expected to lead, to such breach or default. True and complete copies of each Material Contract (including all amendments, supplements, schedules and exhibits thereto) (or, for oral Material Contracts, true and complete summaries of the terms thereof) have been provided to or made available to the CPUH Parties and their respective Representatives.

 

Section 3.9 Absence of Changes.

 

During the period beginning on July 1, 2022 and ending on the date of this Agreement, (a) no Company Material Adverse Effect has occurred, and (b) except as expressly contemplated by this Agreement, any Ancillary Document or in connection with the transactions contemplated hereby or thereby, (i) the Company and its Subsidiaries have conducted the Business in the ordinary course consistent with past practice in all material respects, and (ii) neither the Company nor any of its Subsidiaries has taken any action that would require the consent of CPUH if taken during the period from the date of this Agreement until the Closings pursuant to Section 5.1(b)(i), (ii), (iii), (iv) (v), (vi), (vii), (viii), 5.1(b)(xii) (solely relating to the Company’s directors and officers), 5.1(b)(xiv), 5.1(b)(xv), (xvii), (xviii), (xix), 5.1(b)(xx), 5.1(b)(xxi), 5.1(b)(xxiv), 5.1(b)(xxv) and 5.1(b)(xxvii) (solely to the extent applied to the foregoing clauses of Section 5.1(b)).

 

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Section 3.10 Litigation.

 

As of the date of this Agreement, there is (and for the past three (3) years there has been) (a) no Proceeding or judgment pending or, to the Company’s knowledge, threatened against the Company, any of its Subsidiaries or any of their respective directors or officers in their capacity as such, or affecting any of the Company’s or its Subsidiaries’ respective assets or properties, that if adversely decided or resolved, has been, or would reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers, and, to the Company’s knowledge, no facts exist that would reasonably be expected to form the basis for any such Proceeding or judgment, (b) no Order to which the Company, its Subsidiaries, their respective directors and officers or any of the Company’s or its Subsidiaries’ respective properties or assets is subject, (c) no Proceeding by the Company or any of its Subsidiaries against any other Person, and no such Proceeding is or has been threatened in writing, (d) no settlement or similar agreement that imposes any material ongoing obligation or restriction on the Company or any of its Subsidiaries or the operation of the Business, and (e) no pending or, to the Company’s knowledge, threatened, audit, examination or investigation by any Governmental Entities in respect of the Company or any of its Subsidiaries or any of their respective properties or assets, or any of the directors or officers of the Company or any of its Subsidiaries.

 

Section 3.11 Compliance with Applicable Law.

 

The Company and its Subsidiaries (a) conduct (and for the past three (3) years have conducted) the Business in accordance with all Laws and Orders applicable to them and are not in violation of any such Law or Order, (b) have not received any written communications from a Governmental Entity and, to the Company’s knowledge, there is no such pending communication, that alleges that the Company or any of its Subsidiaries is not in compliance with any such Law or Order and (c) maintain (and for the past three (3) years have maintained) a program of policies, procedures and internal controls reasonably designed and implemented to ensure compliance with applicable Law, except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

Section 3.12 Employee Benefit Plans.

 

(a) Section 3.12(a) of the Company Disclosure Schedules sets forth a true and complete list of all material Employee Benefit Plans.

 

(b) True, complete and correct copies of the following documents, with respect to each material Employee Benefit Plan, where applicable, have been delivered to CPUH (i) all documents embodying or governing such Employee Benefit Plan (or for unwritten Employee Benefit Plans, a written description of the material terms of such Employee Benefit Plan) and any funding medium for the Employee Benefit Plan, (ii) the most recent Internal Revenue Service determination, notification, advisory or opinion letter, (iii) the most recently filed Form 5500 (including all schedules and financial statements attached thereto), (iv) the three (3) most recent actuarial valuation reports, (v) the most recent summary plan description (or other descriptions provided to employees) and all summary(ies) of material modifications thereto, (vi) the last three (3) years of non-discrimination testing results, (vii) all non-routine correspondence to and from any Governmental Entity, and (viii) all material contracts and agreements relating to each material Employee Benefit Plan, including service provider agreements, insurance contracts, annuity contracts, investment management agreements, subscription agreements, participation agreements, and recordkeeping agreements and collective bargaining agreements.

 

(c) Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or approval letter from the Internal Revenue Service with respect to such qualification, or may rely on an opinion letter issued by the Internal Revenue Service with respect to a prototype plan adopted in accordance with the requirements for such reliance and, to the Company’s knowledge, no event or omission has occurred that would be reasonably likely to cause any such Employee Benefit Plan to lose such qualification or otherwise require corrective action under the Internal Revenue Service Employee Plan Compliance Resolution System to maintain such qualification.

 

(d) Each Employee Benefit Plan is and has been established, operated, maintained and administered in all material respects in accordance with applicable Laws and with its terms, including ERISA, the Code and the Affordable Care Act. No Employee Benefit Plan is, or within the past six (6) years has been, the subject of an application or filing under a government sponsored amnesty, voluntary compliance or similar program, or been the subject of any self-correction under any such program. No litigation or governmental administrative proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or, to the Company’s knowledge, threatened with respect to any Employee Benefit Plan. All payments or contributions required to have been made with respect to all Employee Benefit Plans either have been made or have been accrued in accordance with the terms of the applicable Employee Benefit Plan and applicable Law.

 

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(e) Neither the Company, its Subsidiaries nor any ERISA Affiliate (or any predecessor thereof) has ever maintained, contributed to, or been required to contribute to or had any liability (whether contingent or otherwise) or obligation (including on account of any ERISA Affiliate) with respect to (i) any Employee Benefit Plan that is or was subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA, (ii) a “multiemployer plan” (within the meaning of Section (3)37 of ERISA), (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA).

 

(f) No Employee Benefit Plan provides health care, life insurance or any other non-pension benefits to any employees after their employment is terminated (other than (i) as required by Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state Law), (ii) continuation of health benefits provided during any severance period not in excess of one (1) year, or (iii) which lasts until the end of the month in which the termination of employment occurs.

 

(g) Each Employee Benefit Plan that is (or constitutes in any part) a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been established, operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to be made under any Employee Benefit Plan is, or will be, subject to the penalties of Section 409A(a)(1) of the Code.

 

(h) Except as set forth on Section 3.12(h) of the Company Disclosure Schedules, neither the execution or delivery of this Agreement or any Ancillary Document to which the Company is or will be a party, the Company Stockholder Written Consent, the Pubco Stockholder Written Consent, nor the consummation of the transactions contemplated by this Agreement or any Ancillary Document to which the Company or Pubco is or will be a party, could (either alone or in combination with any other event) (i) result in, or cause the accelerated vesting, payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former director, manager, officer, employee, individual independent contractor or other individual service provider of the Company or any of its Subsidiaries, (ii) restrict any rights of the Company or its Subsidiaries to merge, amend or terminate any Employee Benefit Plan, or (iii) result in any payment or benefit being deemed to be a “parachute payment” as defined in Section 280G(b)(2) of the Code (and the regulations promulgated thereunder).

 

(i) Neither the Company nor any of its Subsidiaries has any obligation to make any tax “gross-up”, indemnification or similar “make whole” payments to any current or former director, manager, officer, employee or other individual service provider for any Taxes incurred by such current or former director, manager, officer, employee or other individual service provider, including under Section 409A of the Code or Section 4999 of the Code.

 

(j) Except as set forth on Section 3.12(j) of the Company Disclosure Schedule, no Employee Benefit Plan is subject to the laws of any jurisdiction outside the United States.

 

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Section 3.13 Environmental Matters. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:

 

(a) Neither the Company nor any of its Subsidiaries has received any written notice or communication from any Governmental Entity or any other Person regarding any actual, alleged or potential violation in any respect of, or a failure to comply in any respect with, any Environmental Laws.

 

(b) There is (and for the past three (3) years there has been) no Proceeding pending or, to the Company’s knowledge, threatened against the Company, any of its Subsidiaries or any of their respective directors and officers pursuant to Environmental Laws.

 

(c) There has not been, whether by the Company or any of its Subsidiaries, any manufacture, release, treatment, storage, disposal, arrangement for disposal, transport or handling of, contamination by, or exposure of any Person to, any hazardous, toxic, explosive or radioactive material, substance, waste or other pollutant that is regulated by, or may give rise to Liability pursuant to any Environmental Law, including any petroleum products or byproducts, asbestos, lead, polychlorinated biphenyls, per- and poly-fluoroakyl substances, or radon.

 

(d) The Company has made available to CPUH copies of all environmental, health and safety reports and documents that were prepared for the Company or its Subsidiaries by third parties and are in the Company’s or its Subsidiaries’ possession relating to the operations, properties or facilities of the Company and its Subsidiaries in the past three (3) years.

 

Section 3.14 Intellectual Property.

 

(a) Section 3.14(a) of the Company Disclosure Schedules sets forth a true and complete list of (i) all currently issued or pending Company Registered Intellectual Property, and (ii) any Patent included in the Company Licensed Intellectual Property that is exclusively licensed to the Company or any of its Subsidiaries (“Licensed Patents”), specifying as to each such item, as applicable, (A) the record owner of such item, (B) the jurisdictions in which such item has been issued, registered or filed, (C) the issuance, registration or application date, as applicable, for such item, and (D) the issuance, registration or application number, as applicable, for such item.

 

(b) All fees and filings necessary as of the date of this Agreement to maintain any application or registration, issuance or grant of any Company Registered Intellectual Property and, to the Company’s knowledge, any Licensed Patents, have been timely submitted to the relevant intellectual property office or Governmental Entity and Internet domain name registrars, as applicable. No item of the Company Registered Intellectual Property or, to the Company’s knowledge, Licensed Patents are cancelled. As of the date of this Agreement, the Company Registered Intellectual Property and, to the Company’s knowledge, Licensed Patents are not the subject of any pending Proceedings, including litigation, interference, re-examination, inter parties review, reissue, opposition, nullity or cancellation proceedings and, to the Company’s knowledge, no such Proceedings are threatened by any Governmental Entity or any other Person.

 

(c) Except as set forth in Section 3.14(c) of the Company Disclosure Schedules, to the Company’s knowledge, the Company and its Subsidiaries exclusively own all right, title and interest in and to all Company Owned Intellectual Property, free and clear of all Liens (other than Permitted Liens) and hold all right, title and interest in and to all of the Company’s or its applicable Subsidiary’s rights under all Company Licensed Intellectual Property free and clear of any Lien (other than Permitted Liens). For all Patents included in the Company Owned Intellectual Property, each inventor listed on the Patent has assigned his or her rights to the Company or the relevant Subsidiary and, to the Company’s knowledge, no inventor of any such Patent holds any right or title to the same.

 

(d) The Company Business Intellectual Property, to the Company’s knowledge, constitutes all of the Intellectual Property Rights that are necessary to enable the Company and its Subsidiaries to conduct the Business as currently conducted. To the knowledge of the Company, the Company Registered Intellectual Property and Licensed Patents are currently in compliance with formal legal requirements of the applicable intellectual property office and are not subject to any maintenance fees or Taxes or actions falling due within 90 days after the Closing Date, with the exception of responses, patent maintenance fees, and other filings due in the ordinary course of intellectual property prosecution with the applicable intellectual property offices. All Company Registered Intellectual Property and, to the knowledge of the Company, Licensed Patents are subsisting, and if registered, issued or granted, are valid and enforceable.

 

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(e) The Company’s and its Subsidiaries’ employees, consultants, advisors and independent contractors who independently or jointly contributed to or otherwise participated in the authorship, invention, creation, improvement, modification or development of any Intellectual Property Rights on behalf of the Company (each such person, a “Creator”) have assigned to the Company or its relevant Subsidiary, as applicable, all Intellectual Property Rights authored, invented, created, improved, modified or developed by such person in the course of such Creator’s employment or other engagement with the Company or any of its Subsidiaries, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

(f) The Company and its Subsidiaries have taken reasonable steps to safeguard and maintain the secrecy of any trade secrets, confidential know-how and other confidential information owned by or licensed to the Company and its Subsidiaries. Without limiting the foregoing, to the Company’s knowledge, the Company and its Subsidiaries have not disclosed any material trade secrets, confidential know-how or confidential information to any other Person unless such disclosure was under an appropriate written non-disclosure agreement containing appropriate limitations on use, reproduction and disclosure or was otherwise made subject to an appropriate duty of confidence. To the Company’s knowledge, there has been no violation or unauthorized access to or disclosure of any material trade secrets, confidential know-how or confidential information of or in the possession of the Company or any of its Subsidiaries, or of any written obligations with respect to such.

 

(g) None of the Company Owned Intellectual Property and, to the Company’s knowledge, none of the Company Licensed Intellectual Property is subject to any outstanding Order that restricts in any manner the use, sale, transfer, licensing or exploitation thereof by the Company and its Subsidiaries or affects the validity, use or enforceability of any such Company Business Intellectual Property. The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not alter, encumber, impair or extinguish any Company Owned Intellectual Property or the Company’s or its applicable Subsidiary’s rights under any Company Licensed Intellectual Property.

 

(h) To the Company’s knowledge, neither the Company nor its Subsidiaries nor any actual or currently contemplated design, development, manufacturing, reproduction, use, marketing, offer for sale, sale, importation, exportation, distribution or other exploitation of any Company Product infringes, misappropriates or otherwise violates any valid, enforceable claim of any Patents or other Intellectual Property Rights of any other Person, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

(i) In the past three (3) years, there has been no Proceeding pending against the Company or any of its Subsidiaries nor has the Company or any of its Subsidiaries received any written communications (i) alleging that the Company or any of its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, (ii) challenging the validity, enforceability, use or exclusive ownership of any Company Owned Intellectual Property, or (iii) inviting the Company or any of its Subsidiaries to take a license under any Patent or consider the applicability of any Patents to any products or services of the Company or any of its Subsidiaries or to the conduct of the Business.

 

(j) To the Company’s knowledge, no Person is infringing, misappropriating or otherwise violating any Company Business Intellectual Property. For the past three (3) years, neither the Company nor any of its Subsidiaries has made any claim against any Person alleging any infringement, misappropriation or other violation of any Company Business Intellectual Property.

 

(k) The Company and its Subsidiaries own or have obtained, possess and are in compliance with valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that they own or lease or that are otherwise under the control of the Company and its Subsidiaries and used by them in connection with the Business, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

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(l) Section 3.14(l) of the Company Disclosure Schedules contains a true and complete list of any and all Company Business Intellectual Property that was created, developed or reduced to practice, or is being created, developed or reduced to practice, (i) pursuant to, or in connection with, any Contract with any Governmental Entity or Governmental Entity-affiliated entity, or university, college or other educational institution, or (ii) using any funding or facilities of any Governmental Entity or Governmental Entity-affiliated entity, or university, college or other educational institution (collectively, “Government Funded IP”). Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers, the Company and its Subsidiaries, to the Company’s knowledge, the applicable licensors of Company Licensed Intellectual Property, have taken any and all actions necessary to obtain, secure, maintain, enforce and protect the Company’s or its applicable Subsidiary’s right, title and interest in, to and under all Government Funded IP, and the Company and its Subsidiaries, and to the Company’s knowledge the applicable licensors of Company Licensed Intellectual Property, have complied with any and all any Intellectual Property Rights disclosure and/or licensing obligations under any applicable contract referenced in clause (i) above.

 

(m) With respect to Software owned or purported to be owned by the Company and its Subsidiaries and incorporated into any Company Product, which does not include Off-the-Shelf Software, neither the Company nor any of its Subsidiaries has delivered, licensed or made available, nor do they have any duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any such Software to any escrow agent or other third party and no such Software is subject to the terms of any “copyleft” or other “open source” or other similar license conditions, including the use, modification, distribution or making available of such Software on (i) the disclosure, licensing or distribution of any source code for any portion of such Software, (ii) the granting to licensees of the right to make derivative works of, or other modifications to, any such Software, (iii) the licensing under terms that allow any such Software or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled, or (iv) imposing a restriction on compensation or remuneration with respect to such Software. To the Company’s knowledge, no event has occurred, and no circumstance or condition exists (including the consummation of the transaction contemplated by this Agreement), that (with or without notice or lapse of time) has resulted, or could reasonably be expected to result, in the delivery, license, or disclosure of any such source code to any Person.

 

Section 3.15 Labor and Employment Matters.

 

(a) Section 3.15(a) of the Company Disclosure Schedules contains a complete and accurate list of all employees of the Company and its Subsidiaries as of a date no earlier than seven (7) Business Days prior to the date hereof whose annual base salary or hourly wage rate (as applicable) is equal to at least one hundred thousand U.S. dollars ($100,000) per year, setting forth for each such employee (i) the employee’s position or title, (ii) the entity that employs the individual, (iii) whether classified by the Company as exempt or non-exempt for wage and hour purposes, (iv) the employee’s actual annual base salary (if paid on a salary basis), hourly rate (if paid on an hourly basis) or commission rate (if paid on a purely commission basis), as applicable, (v) date of hire, (vi) business location, (vii) status (i.e., active or inactive), and (viii) any visa or work permit status and the date of expiration, if applicable.

 

(b) The Company and its Subsidiaries are, and in the past three (3) years have been, in compliance in all material respects with all applicable Laws respecting labor and employment matters, including social security matters, fair employment practices, pay equity, workplace safety and health, work authorization and immigration, unemployment compensation, workers’ compensation, affirmative action, terms and conditions of employment, working time, employee leave and wages and hours. Except as would not result in material liability for the Company and its Subsidiaries, taken as a whole, (i) the Company and its Subsidiaries have paid all wages and salaries that have come due and payable to their respective employees within the past three (3) years, and (ii) the Company and its Subsidiaries are, and in the past three (3) years have been, in compliance with applicable Laws regarding proper classification of independent contractors.

 

(c) The Company and its Subsidiaries are not, and in the past three (3) years have not been, a party to or the subject of any material litigation, arbitration, mediation, governmental audit, administrative agency proceeding, private dispute resolution proceeding or governmental investigation, in each case relating to employment or labor matters and no such matters are, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries.

 

(d) In the past three (3) years, the Company and its Subsidiaries have not experienced a “plant closing” or “mass layoff” as defined in the WARN Act or any similar foreign, state or local law.

 

(e) The Company and its Subsidiaries are not a party to or bound by any collective bargaining agreements or other agreements or arrangements with any labor union, labor organization or works council, nor to the knowledge of the Company does it or any of its Subsidiaries have any duty to bargain with any labor union, labor organization or works council. There are no actual or, to the Company’s knowledge, threatened material unfair labor practice charges, material labor grievances, material labor arbitrations, strikes, lockouts, work stoppages, slowdowns or other material labor disputes against or involving the Company or any of its Subsidiaries. To the Company’s knowledge, in the past three (3) years, there have been no labor union organizing activities with respect to any employees of the Company or its Subsidiaries.

 

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(f) Except as set forth in Section 3.15(f) of the Company Disclosure Schedules, to the knowledge of the Company, no Key Employee has expressed, as of the date of this Agreement, any plans to terminate his or her employment.

 

(g) To the Company’s knowledge, within the past three (3) years there have been no allegations of sexual harassment or sexual misconduct made to the Company or any of its Subsidiaries against any Key Employee or officer of the Company or any of its Subsidiaries. None of the Company or any of its Subsidiaries is party to a settlement agreement with a current or former officer, or Key Employee of the Company or any of its Subsidiaries that involves allegations relating to sexual harassment made by or against (i) an officer of the Company or any of its Subsidiaries or (ii) a Key Employee.

 

(h) To the Company’s knowledge, no employee of the Company is in any material respect in violation of any material term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Company or any of its Subsidiaries or (ii) to a former employer of any such employee relating (A) to the right of any such employee to be employed by the Company or any of its Subsidiaries or (B) to the knowledge or use of trade secrets or proprietary information.

 

Section 3.16 Insurance. Section 3.16 of the Company Disclosure Schedules sets forth a true and complete list of all material policies of fire, liability, workers’ compensation, property, casualty and other forms of material insurance maintained by or for the benefit of the Company or any of its Subsidiaries as of the date of this Agreement. All such insurance policies are in full force and effect, all premiums due and payable thereon as of the date of this Agreement have been paid in full; and true and complete copies of all such insurance policies have been made available to CPUH. Neither the Company nor any of its Subsidiaries is in breach or otherwise in default under the terms of such insurance policies (including any such breach or default with respect to the payment of premiums or the giving of notice of claims) and, to the Company’s knowledge, no facts or circumstances exist which would result in any such breach or default, in each case, which has voided, would void, or which might reasonably be expected to void, any coverages under such insurance policies. As of the date of this Agreement, no claim by the Company or any of its Subsidiaries is pending under any such insurance policies as to which coverage has been questioned, denied or disputed, or rights reserved to do so, by the underwriters or insurers thereof, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers. To the Company’s knowledge, the limits of each such insurance policy remain fully available without any exhaustion, erosion or impairment; and during the twelve (12) month period prior to the date of this Agreement, neither the Company nor any of its Subsidiaries have received a written notice of cancellation, an intention not to renew, a material change in terms and conditions, or termination other than in connection with ordinary renewals. To the Company’s knowledge, the coverages provided by such policies are sufficient to comply with any insurance required to be maintained under Material Contracts.

 

Section 3.17 Tax Matters.

 

(a) The Company and its Subsidiaries have prepared and filed all income and other material Tax Returns required to have been filed by them, all such Tax Returns are true and complete in all material respects and prepared in compliance in all material respects with all applicable Laws and Orders, and the Company and its Subsidiaries have paid all material Taxes required to have been paid by them regardless of whether shown on a Tax Return.

 

(b) The Company and its Subsidiaries have timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service provider, equity interest holder or other third-party.

 

(c) The Company and its Subsidiaries are not currently the subject of a Tax audit or examination, and have not been informed in writing of the commencement or anticipated commencement of any Tax audit or examination that has not been resolved or completed, in each case, with respect to material Taxes.

 

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(d) No claim, assessment, deficiency or proposed assessment for any material amount of Tax has been asserted or assessed by any Governmental Entity against the Company or any of its Subsidiaries that remains unresolved or unpaid (other than any claim, assessment or deficiency for which appropriate reserves have been established in accordance with GAAP and which is being contested in good faith by appropriate proceedings).

 

(e) The Company and its Subsidiaries have not consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business, in each case with respect to material Taxes.

 

(f) No “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. income Tax Law), private letter ruling, technical advice memoranda or similar agreement or ruling has been entered into or issued by any Tax Authority with respect to the Company or any of its Subsidiaries which agreement or ruling would be effective after the Closing Date.

 

(g) The Company and its Subsidiaries are not nor have they been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).

 

(h) There are no Liens for Taxes on any assets of the Company or its Subsidiaries other than Permitted Liens.

 

(i) During the two (2)-year period ending on the date of this Agreement, neither the Company nor any of its Subsidiaries has been a distributing corporation or a controlled corporation in a transaction purported or intended to be governed by Section 355 of the Code.

 

(j) Neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which was the Company), or (ii) has any material Liability for the Taxes of any Person (other than the Company or any of its Subsidiaries, as applicable) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law), as a transferee or successor, by Contract or otherwise (other than any Contract entered into in the ordinary course of business, the principal purpose of which does not relate to Taxes).

 

(k) No written claims have ever been made by any Tax Authority in a jurisdiction where the Company and its Subsidiaries do not file a particular type of Tax Return or pay a particular type of Tax that the Company or any of its Subsidiaries is or may be required to file such type of Tax Return in or pay such type of Tax to that jurisdiction, which claims have not been resolved or withdrawn.

 

(l) Neither the Company nor any of its Subsidiaries is a party to any Tax allocation, Tax sharing or Tax indemnity or similar agreement (other than one that is included in a Contract entered into in the ordinary course of business that is not primarily related to Taxes) and neither the Company nor any of its Subsidiaries is a party to any joint venture, partnership or other arrangement that is treated as a partnership for U.S. federal income Tax purposes.

 

(m) The Company and its Subsidiaries are tax residents only in their respective jurisdiction of formation, and are not managed or controlled outside such jurisdiction for income Tax purposes.

 

(n) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing Date, (iv) prepaid amount received on or prior to the Closing Date outside of the ordinary course of Business, (v) intercompany transaction or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law), or (vi) election under Section 965(h) of the Code.

 

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(o) Neither the Company nor any of its Subsidiaries has deferred any Taxes under Section 2302 of the Coronavirus Aid, Relief and Economic Security Act of 2020 (the “CARES Act”).

 

(p) All related party transactions involving the Company or any of its Subsidiaries are at arm’s length in compliance with Section 482 of the Code, the Treasury Regulations promulgated thereunder and any similar provision of state, local or non-U.S. Law.

 

(q) At all times since its formation, Pubco is, and has been since the date of its formation, treated as an association taxable as a corporation.

 

(r) Neither the Company nor any of its Subsidiaries (i) knows of any fact or circumstance, or (ii) has taken or agreed to take any action not contemplated by this Agreement or any Ancillary Document, in each case, that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment.

 

Section 3.18 Brokers. Except for fees (including the amounts due and payable assuming the Closings occur) set forth on Section 3.18 of the Company Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finder’s fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company, any of its Subsidiaries or any of their respective Affiliates for which the Company or any of its Subsidiaries has any obligation.

 

Section 3.19 Real and Personal Property.

 

(a) Owned Real Property. The Company and its Subsidiaries do not own any real property.

 

(b) Leased Real Property. Section 3.19(b) of the Company Disclosure Schedules sets forth a true and complete list (including street addresses) of all real property leased, sub-leased or licensed by the Company and its Subsidiaries (the “Leased Real Property”) and all Real Property Leases pursuant to which the Company or any of its Subsidiaries is a tenant, sub-tenant or licensee as of the date of this Agreement. True and complete copies of all such Real Property Leases (or, for oral Real Property Leases, true and complete summaries of the terms thereof) have been made available to CPUH. Each Real Property Lease is in full force and effect and is a valid, legal and binding obligation of the Company or its Subsidiary (as applicable), enforceable in accordance with its terms against the Company or its Subsidiary (as applicable) and, to the Company’s knowledge, each other party thereto, subject to the Enforceability Exceptions. There is no material breach or default by the Company or its Subsidiary (as applicable) or, to the Company’s knowledge, any third party under any Real Property Lease. No notice under any Real Property Lease has been delivered or received by the Company or any of its Subsidiaries with respect to any breach or default thereunder which has not been cured.

 

(c) Personal Property. The Company and its Subsidiaries have good, valid and indefeasible title to, or a valid leasehold interest in or license or right to use, all of the material tangible assets and properties of the Company and its Subsidiaries reflected in the Company Financial Statements or thereafter acquired by the Company or any of its Subsidiaries prior to the date hereof, except for assets disposed of in the ordinary course of business.

 

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Section 3.20 Transactions with Affiliates. Section 3.20 of the Company Disclosure Schedules sets forth all Contracts between (a) the Company or any of its Subsidiaries, on the one hand, and (b) any officer, director, employee, equityholder or Affiliate of the Company or any of its Subsidiaries, or any family member of the foregoing Persons, on the other hand (each Person identified in this Section 3.20, a “Company Related Party” and each Contract identified in the foregoing clauses (a) and (b) of this Section 3.20, a “Related Party Contract”), other than (i) Contracts with respect to a Company Related Party’s employment with or service as a director to (including benefit plans and other ordinary course compensation from) the Company or any of its Subsidiaries entered into in the ordinary course of business, and (ii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b). No Company Related Party (A) owns any interest in any material asset used in the Business, (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a supplier, lender, partner, lessor, lessee or other material business relation of the Company or any of its Subsidiaries, or (C) owes any material amount to, or is owed any material amount by, the Company or any of its Subsidiaries (other than ordinary course accrued compensation, employee benefits, employee or director expense reimbursement or other transactions entered into after the date of this Agreement that are either permitted pursuant to Section 5.1(b) or entered into in accordance with Section 5.1(b)). All Contracts (including the Related Party Contracts), arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 3.20 are referred to herein as “Company Related Party Transactions”.

 

Section 3.21 Data Privacy and Security.

 

(a) The Company and its Subsidiaries have at all times for the past three (3) years complied in all material respects with all applicable Privacy Laws, Privacy and Data Security Policies (as defined below) and contractual commitments relating to the Processing of Personal Data (collectively, the “Privacy Requirements”). The Company has implemented adequate written policies relating to the Processing of Personal Data, as and to the extent required by applicable Laws (“Privacy and Data Security Policies”).

 

(b) For the past three (3) years, there has not been any and, to the Company’s knowledge there is no pending Proceeding against the Company or any of its Subsidiaries initiated by (i) any Person, (ii) the United States Federal Trade Commission, any state attorney general or similar state official, (iii) any other Governmental Entity, foreign or domestic, or (iv) any regulatory or self-regulatory entity, alleging that any Processing of Personal Data by or on behalf of the Company or any of its Subsidiaries is in violation of any Privacy Requirements.

 

(c) To the Company’s knowledge, during the past three (3) years, there has been no breach of security resulting in unauthorized access, use or disclosure of Personal Data in the possession or control of the Company or any of its Subsidiaries or, to the Company’s knowledge, any of its contractors with regard to any Personal Data obtained from or on behalf of the Company or any of its Subsidiaries, or any unauthorized intrusions or breaches of security into the Company’s or its Subsidiaries’ systems.

 

(d) The Company and its Subsidiaries own or have a license to use the Company IT Systems as necessary to operate the Business as currently conducted, and the Company IT Systems operate and perform in a manner that permits the Company and its Subsidiaries to conduct the Business as currently conducted. To the Company’s knowledge, none of the Company IT Systems contain any worm, bomb, backdoor, clock, timer or other disabling device, code, design or routine that causes the Software of any portion thereof to be erased, inoperable or otherwise incapable of being used, either automatically, with the passage of time or upon command by any unauthorized person.

 

(e) The Company has taken commercially reasonable organizational, physical, administrative and technical measures required by the Privacy Requirements, and consistent with industry standards, designed to protect the integrity, security and operations of the Company IT Systems. The Company and its Subsidiaries have implemented commercially reasonable procedures, satisfying the requirements of applicable Privacy Laws in all material respects, designed to detect data security incidents and to protect Personal Data against loss and against unauthorized access, use, modification, disclosure or other misuse.

 

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(f) The consummation of any of the transactions contemplated by this Agreement or any of the Ancillary Documents will not violate any applicable Privacy Requirements, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, or as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of the Company and Pubco to consummate the Mergers.

 

Section 3.22 Compliance with International Trade & Anti-Corruption Laws.

 

(a) Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any of their respective Affiliates or Representatives acting for or on their behalf, is or has been, for the past five (5) years a Sanctioned Person or a Restricted Person.

 

(b) Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any of their respective Affiliates or Representatives acting for or on their behalf, is or for the past five (5) years has been in violation of any applicable Sanctions and Export Control Laws. The Company and its Subsidiaries have obtained all applicable import and export licenses as well as all other necessary licenses, Consents, notices, waivers, approvals, Orders, authorizations, and declarations, and completed all necessary registrations and filings, required under applicable Sanctions and Export Control Laws.

 

(c) Neither the Company nor any of its Subsidiaries has (i) made any voluntary, directed or involuntary disclosure to any Governmental Entity with respect to any alleged act or omission arising under or relating to any non-compliance with any Sanctions and Export Control Laws, (ii) been the subject of a past, current, pending or threatened investigation, inquiry or enforcement Proceeding for a violation of Sanctions and Export Control Laws, or (iii) received any notice, request, penalty, or citation for any actual or potential non-compliance with Sanctions and Export Control Laws.

 

(d) The Company and its Subsidiaries have in place policies, controls, and systems reasonably designed to promote compliance with all applicable Sanctions and Export Control Laws.

 

(e) Since January 1, 2018, neither the Company nor any of its Subsidiaries nor their directors, officers, employees or, to the Company’s knowledge, any of their respective Affiliates or agents acting for or on their behalf, has directly or indirectly (i) made, offered, promised, paid, received or caused to be made, offered, promised, paid or received any unlawful bribes, kickbacks or other similar payments to or from any “foreign official” (as defined in the FCPA), foreign political party or official thereof, candidate for foreign political office or other person for the purpose of (a) influencing any official act or decision of such official, party or candidate, (b) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or (c) securing any improper advantage, in the case of (a), (b) and (c) above in order to assist the Company or any of its Subsidiaries or Affiliates in obtaining or retaining business for or with, or directing business to, any person, or (ii) otherwise violated any Anti-Corruption Laws. Since January 1, 2018, there have been no pending or, to the Company’s knowledge, threatened government investigations, enforcement actions, or settlements regarding the Company’s compliance with any Anti-Corruption Laws, and the Company has not made any voluntary disclosure regarding any Anti-Corruption Laws or received any notice or other communication from any source regarding an alleged violation of, or failure to comply with, any Anti-Corruption Laws.

 

Section 3.23 Information Supplied. None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference prior to the Closings in the Registration Statement/Proxy Statement will, when the Registration Statement/Proxy Statement is declared effective, when the Registration Statement/Proxy Statement is mailed to the Pre-Closing CPUH Stockholders, or at the time of the CPUH Stockholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

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Section 3.24 Regulatory Compliance.

 

(a) The Company and its Subsidiaries have filed all required Regulatory Permits and the Company, its Subsidiaries and the Company Products are in compliance in all material respects with all such Regulatory Permits. To the knowledge of the Company, (i) no Governmental Entity is considering limiting, suspending or revoking any Regulatory Permit held by the Company or any of its Subsidiaries, if any, and (ii) each third party that is a manufacturer, contractor or agent for the Company or any of its Subsidiaries is in compliance in all material respects with all Regulatory Permits, if any, required by all applicable Healthcare Laws insofar as they reasonably pertain to the Business or Company Products.

 

(b) Neither the Company nor any of its Subsidiaries has, nor, to the Company’s knowledge, have any of their Representatives acting on their behalf, received any written notice that the FDA or any other Governmental Entity responsible for oversight or enforcement of any applicable Healthcare Law, or any institutional review board (or similar body responsible for oversight of human subjects research) or institutional animal care and use committee (or similar body responsible for oversight of animal research), has initiated, or threatened to initiate, any Proceeding to restrict or suspend preclinical or nonclinical research on or clinical study of any Company Product or in which the Governmental Entity alleges or asserts a failure to comply with applicable Healthcare Laws.

 

(c) There are no Proceedings pending or, to the Company’s knowledge, threatened, with respect to any alleged violation by the Company or any of its Subsidiaries or, to the Company’s knowledge, any of their Affiliates or Representatives acting for or on their behalf, of the United States Federal Food, Drug, and Cosmetic Act (the “FDCA”) or any other applicable Healthcare Law as it relates to the Business or a Company Product, and neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge, any of their Representatives acting on their behalf, is party to or subject to any corporate integrity agreement, monitoring agreement, consent decree, deferred prosecution agreement, settlement order or similar Contract with or imposed by any Governmental Entity related to any applicable Healthcare Law. Neither the Company, its Subsidiaries nor, to the knowledge of the Company, any of their respective contract manufacturers or clinical trial sites has received any FDA Form 483s, warning letters, other similar correspondence or written notice from the FDA or any other Governmental Entity alleging or asserting material noncompliance with any applicable Healthcare Laws.

 

(d) All Company Products are, as applicable, developed, tested, investigated and manufactured in compliance in all material respects with applicable protocols and Healthcare Laws, including all applicable good clinical practices and quality system regulations of the FDA or any other Governmental Entity. To the knowledge of the Company, no event has occurred that has adversely affected the integrity, in the aggregate, of data or other results collected or otherwise obtained in connection with clinical trials, nonclinical research or manufacturing activities conducted by or on behalf of the Company or its Subsidiaries, on the overall conclusions in any such trial or research with respect to the Company’s Products.

 

(e) Neither the Company nor any of its Subsidiaries has, nor as it relates to the Company or its Subsidiaries or any Company Product, to the Company’s knowledge has, any Person engaged by the Company or any of its Subsidiaries for contract research, consulting or other collaboration services with respect to any Company Product, made any untrue statement of a material fact or a fraudulent statement to the FDA or any other Governmental Entity responsible for enforcement or oversight with respect to applicable Healthcare Laws, or failed to disclose a material fact required to be disclosed to the FDA or such other Governmental Entity that, at the time such disclosure was made, would reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191 (September 10, 1991), or for any other Governmental Entity to invoke a similar policy.

 

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(f) All preclinical studies conducted or being conducted with respect to all Company Products by or at the direction of the Company or any of its Subsidiaries have been and are being conducted in material compliance with accepted professional scientific standards and all applicable Law, including all applicable Healthcare Laws, including the applicable requirements of Good Laboratory Practices.

 

(g) None of the Company, its Subsidiaries or, to the Company’s knowledge, any of the Company’s or its Subsidiaries’ respective owners with a 5% or greater equity interest in the Company, directors, officers, employees, or individual independent contractors or other service providers, including clinical trial investigators(i) have been or are currently disqualified or excluded, (ii) to the Company’s knowledge are currently subject to an investigation or Proceeding that would reasonably be expected to result in disqualification, exclusion, debarment or the assessment of civil monetary penalties for violation of any health care programs of any Governmental Entity under, or (iii) have been convicted of any crime regarding health care products or services, or engaged in any conduct that would reasonably be expected to result in any such debarment, exclusion, disqualification, or ineligibility under applicable Healthcare Laws, including, (A) debarment under 21 U.S.C. Section 335a or any similar Law, (B) exclusion under 42 U.S.C. Section 1320a-7 or any similar Law, or (C) exclusion under 48 CFR Subpart Section 9.4, the System for Award Management Nonprocurement Common Rule. None of the Company, its Subsidiaries or, to the Company’s knowledge, any of the Company’s or its Subsidiaries’ current or former directors, officers, employees, or individual independent contractors or other service providers to the extent acting on behalf of the Company or any of its Subsidiaries, have been subject to any consent decree of, or criminal or civil fine or penalty imposed by, any Governmental Entity related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, or obstruction of an investigation of controlled substances. None of the Company, its Subsidiaries or, to the Company’s knowledge, any of the Company’s or its Subsidiaries’ current or former directors, officers, employees, or individual independent contractors or other service providers to the extent acting on behalf of the Company or any of its Subsidiaries, has been (1) subject to any enforcement, regulatory or administrative proceedings against or affecting the Company or any of its Affiliates relating to material violations of any Healthcare Law and, to the Company’s knowledge, no such enforcement, regulatory or administrative proceeding has been threatened, or (2) a party to any corporate integrity agreement, monitoring agreement, deferred prosecution agreement, consent decree, settlement order or similar agreement imposed by any Governmental Entity. None of the Company, its Subsidiaries or, to the Company’s knowledge, any of the Company’s or its Subsidiaries’ directors, officers, employees, or individual independent contractors or other service providers to the extent acting on behalf of the Company or any of its Subsidiaries, have received notice from the FDA, any other Governmental Entity or any health insurance institution with respect to debarment, disqualification or restriction.

 

(h) All material reports, documents, claims, permits and notices required to be filed, maintained or furnished to the FDA or any similar foreign Governmental Entity by the Company or any of its Subsidiaries have been so filed, maintained or furnished. To the knowledge of the Company, all such reports, documents, claims, permits and notices were complete and accurate in all material respects on the date filed (or were corrected or supplemented by a subsequent filing).

 

(i) Without limiting the foregoing in this Section 3.24, (A) in the three (3) years prior to the date hereof, neither the Company nor any of its Subsidiaries, nor any of their respective officers, directors or employees, has received written notice from the FDA, the Federal Trade Commission or other Governmental Entity in connection with advertising or promotion of any Company Products, and in respect of the Business or Company Products, alleging or asserting noncompliance with requirements of any applicable Law and (B) the Company, its Subsidiaries and, to the Company’s knowledge, their Affiliates or Representatives acting for or on their behalf, are and have been for the past three (3) years in compliance in all material respects with all applicable Healthcare Laws.

 

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Section 3.25 Government Contracts. Neither the Company nor any of its Subsidiaries is party to: (i) any Contract, including an individual task order, delivery order, purchase order, basic ordering agreement, letter Contract or blanket purchase agreement with any Governmental Entity or (ii) any subcontract or other Contract by which the Company or one of its Subsidiaries has agreed to provide goods or services through a prime contractor directly to a Governmental Entity that is expressly identified in such subcontract or other Contract as the ultimate consumer of such goods or services (such Contracts, “Government Contracts”). Neither the Company nor any of its Subsidiaries has provided any offer, bid, quotation or proposal to sell products made or services provided by the Company or any of its Subsidiaries that, if accepted or awarded, would lead to any Contract or subcontract of the type described by the foregoing sentence.

 

Section 3.26 Investigation; No Other Representations.

 

(a) Each of the Company and Pubco, on its own behalf and on behalf of its Affiliates and Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning the business, assets, condition, operations and prospects of the CPUH Parties, and (ii) it has been furnished with or given access to such documents and information about the CPUH Parties and their respective businesses and operations as it and its Affiliates and Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby.

 

(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each of the Company and Pubco has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of any CPUH Party or any other Person, either express or implied, and each of the Company and Pubco, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 4 and in the Ancillary Documents to which it is or will be a party, none of the CPUH Parties nor any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.

 

Section 3.27 PPP and Similar Loans. Except as set forth in Section 3.27 of the Company Disclosure Schedules, neither the Company nor any of its Subsidiaries has applied for or received any loans pursuant to the Paycheck Protection Program established by the CARES Act or any similar Law or program. Neither the Company nor any of its Subsidiaries has any outstanding loans pursuant to the Paycheck Protection Program established by the CARES Act or any similar Law or program.

 

Section 3.28 Financing Arrangements. The Company has delivered to CPUH true and complete copies of each of (i) the Revenue Interest Financing Agreement and the RTW Side Letter, (ii) the Chardan Commitment Letter and all Contracts to be entered into by the Company or any of its Subsidiaries in connection with the Chardan Equity Line and (iii) the Fortress Bridging Agreement and all Contracts to be entered into, or previously entered into, by the Company or any of its Subsidiaries in connection with the Fortress Financing.

 

Section 3.29 Business Activities. Pubco was incorporated solely for the purpose of entering into this Agreement and consummating the transactions contemplated hereby and has not engaged in any activities or business, other than those incident or related to or incurred in connection with its incorporation or formation, as applicable, or the negotiation, preparation or execution of this Agreement, the performance of its covenants or agreements in this Agreement or the consummation of the transactions contemplated hereby. Pubco has no Indebtedness.

 

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Section 3.30 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY CPUH PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE 3 OR THE ANCILLARY DOCUMENTS, NONE OF THE COMPANY, PUBCO NOR ANY OTHER PERSON MAKES, AND EACH OF THE COMPANY AND PUBCO EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF THE COMPANY AND ITS SUBSIDIARIES THAT HAVE BEEN MADE AVAILABLE TO ANY CPUH PARTY OR ANY OF THEIR REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF THE COMPANY AND ITS SUBSIDIARIES BY OR ON BEHALF OF THE MANAGEMENT OF THE COMPANY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY ANY CPUH PARTY OR ANY OF THEIR REPRESENTATIVES IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 4 OR THE ANCILLARY DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF ANY CPUH PARTY ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF ANY CPUH PARTY, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY EITHER OF THE COMPANY OR PUBCO OR ANY OF THEIR RESPECTIVE REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Article 4

REPRESENTATIONS AND WARRANTIES RELATING TO THE CPUH PARTIES

 

(a) Subject to Section 8.8, except as set forth on the CPUH Disclosure Schedules or as set forth in any CPUH SEC Reports filed or furnished with the SEC at least one (1) Business Day prior to the date hereof (excluding (i) any disclosures in any “risk factors” section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimers and other disclosures that are generally cautionary, predictive or forward-looking in nature), and (ii) any matters required to be disclosed for purposes of Section 4.2 (Authority) and Section 4.6(a) (Capitalization), each CPUH Party hereby represents and warrants to the Company and Pubco, as of the date hereof and as of the Closing Date, as follows:

 

Section 4.1 Organization and Qualification. Each CPUH Party is a corporation or limited liability company, as applicable, duly organized, incorporated or formed, as applicable, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation, as applicable.

 

Section 4.2 Authority.

 

(a) Each CPUH Party has the requisite corporate or similar power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder (subject to the CPUH Stockholder Approval and the stockholder approval of Merger Sub I and the member approval of Merger Sub II, in each case as contemplated in Section 5.9) and to consummate the transactions contemplated hereby and thereby. Subject to obtaining the CPUH Stockholder Approval and the approvals and consents to be obtained by each Merger Sub pursuant to Section 5.9, the execution and delivery of this Agreement, the Ancillary Documents to which a CPUH Party is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Ancillary Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary corporate action on the part of such CPUH Party. This Agreement and each Ancillary Document to which a CPUH Party is or will be a party has been or will be, upon execution thereof, as applicable, duly and validly executed and delivered by such CPUH Party and constitutes or will constitute, upon execution and delivery thereof, as applicable, a valid, legal and binding agreement of such CPUH Party (assuming that this Agreement and the Ancillary Documents to which such CPUH Party is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against such CPUH Party in accordance with their terms, subject to Enforceability Exceptions.

 

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(b) On or prior to the date of this Agreement, each of the CPUH Board, the board of directors of Merger Sub I and the board of managers of Merger Sub II has (a) determined that this Agreement, the Ancillary Documents to which CPUH, Merger Sub I or Merger Sub II, as applicable, is or will be party and the transactions contemplated hereby and thereby are fair to, advisable and in the best interests of CPUH, Merger Sub I, Merger Sub II and their respective stockholders or members, as applicable, respectively, (b) approved and declared advisable this Agreement, the Ancillary Documents to which CPUH, Merger Sub I or Merger Sub II, as applicable, respectively, is or will be party and the transactions contemplated hereby and thereby, and (c) resolved to recommend that the stockholders or members, as applicable, of CPUH, Merger Sub I and Merger Sub II, respectively, adopt and approve this Agreement, the Ancillary Documents to which the CPUH, Merger Sub I or Merger Sub II, as applicable, is or will be party and the transactions contemplated hereby and thereby and, in the case of CPUH, each other Required Transaction Approval.

 

Section 4.3 Consents and Requisite Governmental Approvals; No Violations.

 

(a) No Consent, approval, waiver or authorization of, or designation, declaration or filing with, any Governmental Entity is required on the part of any CPUH Party with respect to such CPUH Party’s execution, delivery or performance of its obligations under this Agreement or the Ancillary Documents to which it is or will be party or the consummation of the transactions contemplated hereby or thereby, except for (i) compliance with and filings under the HSR Act, (ii) the filing with the SEC of (A) the Registration Statement/Proxy Statement and the Resale Registration Statement and the declaration of the effectiveness thereof by the SEC, and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, (iii) filing of the Certificates of Merger, (iv) the approvals and consents to be obtained by either Merger Sub pursuant to Section 5.9, (v) the CPUH Stockholder Approval, or (vi) any other Consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which has not had, and would not reasonably be expected to have, individually or in the aggregate, a CPUH Material Adverse Effect.

 

(b) Subject to receipt of the approvals set forth in Section 4.3(a), neither the execution, delivery or performance by any CPUH Party of this Agreement nor the Ancillary Documents to which any CPUH Party is or will be a party, nor the consummation of the transactions contemplated hereby or thereby will, directly or indirectly (with or without due notice or lapse of time or both) (i) result in any breach of any provision of the Governing Documents of any CPUH Party, (ii) result in a violation or breach of, or constitute a default or give rise to any right of termination, Consent, cancellation, amendment, modification, suspension, revocation or acceleration under, any of the terms, conditions or provisions of any Contract to which any CPUH Party is a party, (iii) violate, or constitute a breach under, any Order or applicable Law to which any such CPUH Party or any of its properties or assets are bound, or (iv) result in the creation of any Lien upon any of the assets or properties (other than any Permitted Liens) or Equity Securities of any CPUH Party, except, in the case of any of clauses (ii) through (iv) above, as has not had, and would not reasonably be expected to have, individually or in the aggregate, a CPUH Material Adverse Effect.

 

Section 4.4 Brokers. Except for fees (including the amounts due and payable assuming the Closings occur) set forth on Section 4.4 of the CPUH Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finder’s fee or other commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of CPUH or any of its Affiliates for which CPUH has any obligation.

 

Section 4.5 Information Supplied. None of the information supplied or to be supplied by or on behalf of either CPUH Party expressly for inclusion or incorporation by reference prior to the Closings in the Registration Statement/Proxy Statement will, when the Registration Statement/Proxy Statement is declared effective or when the Registration Statement/Proxy Statement is mailed to the Pre-Closing CPUH Stockholders or at the time of the CPUH Stockholders Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

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Section 4.6 Capitalization.

 

(a) The authorized capital stock of CPUH consists of (i) 300,000,000 shares of Class A Common Stock, (ii) 30,000,000 shares of Class B Common Stock, and (iii) 3,000,000 shares of preferred stock, in each case, par value $0.0001 per share. As of February 8, 2023, there were (A) 9,223,194 shares of Class A Common Stock and 21,532,500 shares of Class B Common Stock issued and outstanding, all of which were validly issued, fully paid and non-assessable, (B) 30,000 shares of CPUH Common Stock held in the treasury of CPUH, (C) 34,395,833 shares of Class A Common Stock and no shares of Class B Common Stock reserved for future issuance pursuant to CPUH Warrants, and (D) 34,395,655 CPUH Warrants issued and outstanding, of which 12,833,333 CPUH Warrants were CPUH Private Warrants.

 

(b) Except for this Agreement, the Ancillary Documents or the transactions contemplated hereby and thereby (including the PIPE Financing), and other than the 34,395,655 CPUH Warrants, there are no outstanding (i) equity appreciation, phantom equity or profit participation rights, or (ii) options, restricted stock, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts or obligations that would require CPUH, except as contemplated by this Agreement, the Ancillary Documents (including the Subscription Agreements) or as mutually agreed in writing by the Parties, to issue, sell or otherwise cause to become outstanding or to acquire, repurchase or redeem any Equity Securities or securities convertible into or exchangeable for Equity Securities of CPUH. There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of CPUH Equity Securities to which CPUH, the Sponsor or, to CPUH’s knowledge, any other Person is a party.

 

(c) The Equity Securities of each Merger Sub outstanding as of the date of this Agreement (i) have been duly authorized and validly issued and are fully paid and non-assessable, (ii) were issued in compliance in all material respects with applicable Law, and (iii) were not issued in breach or violation of any preemptive rights or Contract to which CPUH is a party or bound. All of the outstanding Equity Securities of each Merger Sub are owned directly by CPUH free and clear of all Liens (other than transfer restrictions under applicable Securities Laws). As of the date of this Agreement, CPUH has no Subsidiaries other than Merger Sub I and Merger Sub II and does not own, directly or indirectly, any Equity Securities in any Person other than Merger Sub I and Merger Sub II.

 

(d) Section 4.6(d) of the CPUH Disclosure Schedules sets forth a list of all Indebtedness of CPUH as of the date of this Agreement, including the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement and the debtor and the creditor thereof.

 

Section 4.7 SEC Filings. CPUH has timely filed or furnished all statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC pursuant to Federal Securities Laws since its initial public offering (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of filing, the “CPUH SEC Reports”). Each of the CPUH SEC Reports, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, complied in all material respects with the applicable requirements of the Federal Securities Laws (including, as applicable, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder) applicable to the CPUH SEC Reports. As of their respective dates of filing, the CPUH SEC Reports did not (a) contain any untrue statement of a material fact, or (b) omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made or will be made, as applicable, not misleading in any material respect. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the CPUH SEC Reports.

 

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Section 4.8 Trust Account. As of February 7, 2023, CPUH has an amount in cash in the Trust Account equal to at least $94,720,104.94. The funds held in the Trust Account are held in trust pursuant to that certain Investment Management Trust Agreement, dated February 4, 2021, between CPUH and Continental Stock Transfer & Trust Company, as trustee (the “Trustee”) (the “Trust Agreement”). There are no separate agreements, side letters or other understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the CPUH SEC Reports to be inaccurate in any material respect or, to CPUH’s knowledge, that would entitle any Person to any portion of the funds in the Trust Account (other than (i) in respect of deferred underwriting commissions or Taxes, (ii) the Pre-Closing CPUH Stockholders who shall have elected to redeem their Class A Common Stock pursuant to the Governing Documents of CPUH, or (iii) if CPUH fails to complete a business combination within the allotted time period set forth in the Governing Documents of CPUH and liquidates the Trust Account, subject to the terms of the Trust Agreement, CPUH (in limited amounts to permit CPUH to pay the expenses of the Trust Account’s liquidation, dissolution and winding up of CPUH) and then the Pre-Closing CPUH Stockholders). Prior to the Closings, none of the funds held in the Trust Account are permitted to be released, except in the circumstances described in the Governing Documents of CPUH and the Trust Agreement. CPUH has performed all material obligations required to be performed by it to date under, and is not in material default or delinquent in performance or any other respect (claimed or actual) in connection with the Trust Agreement, and, to the knowledge of CPUH, no event has occurred which, with due notice or lapse of time or both, would constitute such a material default thereunder. As of the date of this Agreement, there are no claims or proceedings pending with respect to the Trust Account. Since February 4, 2021, CPUH has not released any money from the Trust Account (other than (i) interest income earned on the funds held in the Trust Account as permitted by the Trust Agreement and (ii) in connection with redemptions made pursuant to the Governing Documents of CPUH). Upon the consummation of the transactions contemplated hereby, including the distribution of assets from the Trust Account (A) in respect of deferred underwriting commissions or Taxes, or (B) to the Pre-Closing CPUH Stockholders who have elected to redeem their Class A Common Stock pursuant to the Governing Documents of CPUH, each in accordance with the terms of and as set forth in the Trust Agreement, CPUH shall have no further obligation under either the Trust Agreement or the Governing Documents of CPUH to liquidate or distribute any assets held in the Trust Account, and the Trust Agreement shall terminate in accordance with its terms.

 

Section 4.9 Transactions with Affiliates. Section 4.9 of the CPUH Disclosure Schedules sets forth all Contracts between (a) CPUH, on the one hand, and (b) any officer, director, employee, equityholder (including the Sponsor) or Affiliate of either CPUH, the Sponsor or any family member of the forgoing Persons, on the other hand (each Person identified in this Section 4.9, a “CPUH Related Party”), other than (i) Contracts with respect to a CPUH Related Party’s employment with or service as a director to CPUH entered into in the ordinary course of business (including benefit plans, indemnification arrangements and other ordinary course compensation), (ii) the Governing Documents of each Merger Sub, and (iii) Contracts entered into after the date of this Agreement that are either permitted pursuant to Section 5.10 or Section 5.11 or entered into in accordance with Section 5.10 or Section 5.11. No CPUH Related Party (A) owns any interest in any material asset used in the business of CPUH, (B) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material client, supplier, lender, partner, customer, lessor, lessee or other material business relation of CPUH or (C) owes any material amount to, or is owed any material amount by, CPUH. All Contracts, arrangements, understandings, interests and other matters that are required to be disclosed pursuant to this Section 4.9 are referred to herein as “CPUH Related Party Transactions.”

 

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Section 4.10 Litigation. As of the date of this Agreement, there is (and since its organization, incorporation or formation, as applicable, there has been) no Proceeding or judgment pending or, to CPUH’s knowledge, threatened against any CPUH Party that, if adversely decided or resolved, has been, or would reasonably be expected to be, material to the CPUH Parties, taken as a whole, or has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of CPUH to consummate the Mergers. As of the date of this Agreement, none of the CPUH Parties nor any of their respective properties or assets is subject to any Order. As of the date of this Agreement, there are no material, Proceedings by any CPUH Party pending against any other Person.

 

Section 4.11 Compliance with Applicable Law. Each CPUH Party is (and since its incorporation has been) in compliance with all applicable Laws, except as has not been, and would not reasonably be expected to be, individually in the aggregate, material to the CPUH Parties, taken as a whole, or has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of CPUH to consummate the Mergers.

 

Section 4.12 Merger Sub Activities. Each Merger Sub was incorporated or formed, as applicable, solely for the purpose of entering into this Agreement and consummating the transactions contemplated hereby and has not engaged in any activities or business, other than those incident or related to or incurred in connection with its incorporation or formation, as applicable, or the negotiation, preparation or execution of this Agreement, the performance of its covenants or agreements in this Agreement or the consummation of the transactions contemplated hereby. Neither Merger Sub has any Indebtedness.

 

Section 4.13 Internal Controls; Listing; Financial Statements.

 

(a) Except as not required in reliance on exemptions from various reporting requirements by virtue of CPUH’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012, as amended, or “smaller reporting company” within the meaning of the Exchange Act, since its initial public offering, (i) CPUH has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of CPUH’s financial reporting and the preparation of CPUH’s financial statements for external purposes in accordance with GAAP, and (ii) CPUH has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act) designed to ensure that information relating to CPUH is made known to CPUH’s principal executive officer and principal financial officer by others within CPUH. Such disclosure controls and procedures are effective in timely alerting CPUH’s principal executive officer and principal financial officer to material information required to be included in CPUH’s periodic reports required under the Exchange Act.

 

(b) Each director and executive officer of CPUH has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder. CPUH has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

 

(c) Since its initial public offering, CPUH has complied in all material respects with all applicable listing and corporate governance rules and regulations of NYSE. The classes of securities representing issued and outstanding Class A Common Stock and CPUH Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NYSE. There is no Proceeding pending or, to the knowledge of CPUH, threatened against CPUH by NYSE or the SEC with respect to any intention by such entity to deregister the Class A Common Stock or CPUH Warrants or prohibit or terminate the listing of Class A Common Stock or CPUH Warrants on NYSE. Except as contemplated by this Agreement (including in connection with the CPUH Merger), CPUH has not taken any action that is designed to terminate the registration of Class A Common Stock under the Exchange Act.

 

(d) The CPUH SEC Reports contain true and complete copies of the financial statements (including all related notes and schedules thereto) of CPUH (the “CPUH Financial Statements”). The CPUH Financial Statements (A) fairly present in all material respects the financial position of CPUH as at the respective dates thereof, and the results of its operations and cash flows for the respective periods then ended and fairly present, in all material respects, its stockholders’ equity, (B) were prepared in conformity with GAAP applied on a consistent basis during the periods involved, and (C) comply, in all material respects, with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).

 

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(e) CPUH has established and maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization, and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for CPUH’s and its Subsidiaries’ assets. CPUH maintains and, for all periods covered by the CPUH Financial Statements, has maintained, in all material respects in accordance with GAAP and applicable Law, books and records of CPUH in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and Liabilities of CPUH.

 

(f) There are no outstanding loans or other extensions of credit made by CPUH to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of CPUH.

 

(g) Except as set forth on Section 4.13(g) of the CPUH Disclosure Schedules, since its incorporation, neither CPUH nor, to the knowledge of CPUH, CPUH’s independent auditors has received or been made aware of any written complaint, allegation, assertion or claim that there is or there has been, (i) a “significant deficiency” in the internal controls over financial reporting of CPUH, (ii) a “material weakness” in the internal controls over financial reporting of CPUH, or (iii) fraud, whether or not material, that involves management or other employees of CPUH who have a significant role in the internal controls over financial reporting of CPUH.

 

Section 4.14 No Undisclosed Liabilities. Except for the Liabilities (a) set forth in Section 4.14 of the CPUH Disclosure Schedules, (b) incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, any Liabilities arising out of, or related to, any Proceeding related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, including any stockholder demand or other stockholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), (c) set forth or disclosed in the CPUH Financial Statements, (d) that have arisen since the date of the most recent balance sheet included in the CPUH SEC Reports in the ordinary course of business, (e) either permitted to be incurred pursuant to or incurred in accordance with Section 5.10 or (f) that have not been, and would not reasonably be expected to be, individually or in the aggregate, material to CPUH or that has not had, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of CPUH to consummate the Mergers, CPUH does not have any Liabilities.

 

Section 4.15 Employee Matters. CPUH does not have any current or former employees, and does not maintain, sponsor, contribute to or have any present or future Liability with respect to (other than as a result of the transactions contemplated by this Agreement) any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA).

 

Section 4.16 Tax Matters.

 

(a) Except with respect to any Taxes or Tax Returns required pursuant to Section 4501 of the Code: (i) each CPUH Party has prepared and filed all income and other material Tax Returns required to have been filed by it and (ii) all such Tax Returns are true and complete in all material respects and prepared in compliance in all material respects with all applicable Laws and Orders, and each CPUH Party has paid all material Taxes required to have been paid or deposited by it regardless of whether shown on a Tax Return.

 

(b) Each CPUH Party has timely withheld and paid to the appropriate Tax Authority all material amounts required to have been withheld and paid in connection with amounts paid or owing to any employee, individual independent contractor, other service providers, equity interest holder or other third-party.

 

(c) No CPUH Party is currently the subject of a Tax audit or examination, and has not been informed in writing of the commencement or anticipated commencement of any Tax audit or examination that has not been resolved or completed, in each case with respect to material Taxes.

 

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(d) No CPUH Party has consented to extend or waive the time in which any material Tax may be assessed or collected by any Tax Authority, other than any such extensions or waivers that are no longer in effect or that were extensions of time to file Tax Returns obtained in the ordinary course of business, in each case with respect to material Taxes.

 

(e) None of the CPUH Parties is and none of the CPUH Parties has been a party to any “listed transaction” as defined in Section 6707A of the Code and Treasury Regulations Section 1.6011-4 (or any corresponding or similar provision of state, local or non-U.S. income Tax Law).

 

(f) There are no Liens for Taxes on any assets of any CPUH Party other than Permitted Liens.

 

(g) No written claims have ever been made by any Tax Authority in a jurisdiction where a CPUH Party does not file a particular type of Tax Return or pay a particular type of Tax that a CPUH Party is or may be required to file such type of Tax Return in or pay such type of Tax to that jurisdiction, which claims have not been resolved or withdrawn.

 

(h) Each CPUH Party is tax resident only in its jurisdiction of organization, incorporation or formation, as applicable.

 

(i) No CPUH Party has a branch, permanent establishment (within the meaning of an applicable Tax treaty) or otherwise has an office or fixed place of business in a country other than the country in which it is organized.

 

(j) No CPUH Party will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in, or use of improper, method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing Date, (iv) prepaid amount received on or prior to the Closing Date outside of the ordinary course of Business or (v) intercompany transaction or excess loss amount described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).

 

(k) At all times since its formation, Merger Sub II has been treated as an entity disregarded as separate from CPUH for U.S. federal income tax purposes. CPUH has not filed any election (or otherwise take any position) inconsistent with such treatment as an entity disregarded as separate from CPUH for U.S. federal income tax purposes.

 

(l) None of the CPUH Parties (i) knows of any fact or circumstance, or (ii) has taken or agreed to take any action not contemplated by this Agreement or any Ancillary Documents, in each case, that would reasonably be expected to prevent the Mergers from qualifying for the Intended Tax Treatment.

 

Section 4.17 Investigation; No Other Representations.

 

(a) Each CPUH Party, on its own behalf and on behalf of its Affiliates and Representatives, acknowledges, represents, warrants and agrees that (i) it has conducted its own independent review and analysis of, and, based thereon, has formed an independent judgment concerning the business, assets, condition, operations and prospects of, the Company and its Subsidiaries, and (ii) it has been furnished with or given access to such documents and information about the Company, its Subsidiaries and the Business as it and its Representatives have deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement, the Ancillary Documents to which it is or will be a party and the transactions contemplated hereby and thereby.

 

(b) In entering into this Agreement and the Ancillary Documents to which it is or will be a party, each CPUH Party has relied solely on its own investigation and analysis and the representations and warranties expressly set forth in Article 3 and in the Ancillary Documents to which it is or will be a party and no other representations or warranties of the Company, Pubco or any other Person, either express or implied, and each CPUH Party, on its own behalf and on behalf of its Representatives, acknowledges, represents, warrants and agrees that, except for the representations and warranties expressly set forth in Article 3 and in the Ancillary Documents to which it is or will be a party, none of the Company, Pubco nor any other Person makes or has made any representation or warranty, either express or implied, in connection with or related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby.

 

Section 4.18 PIPE Investment. CPUH has delivered to the Company true and complete copies of the Subscription Agreements as of the date hereof.

 

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Section 4.19 EXCLUSIVITY OF REPRESENTATIONS AND WARRANTIES. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO EITHER THE COMPANY OR PUBCO, OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE 4 OR THE ANCILLARY DOCUMENTS, NONE OF THE CPUH PARTIES NOR ANY OTHER PERSON MAKES, AND EACH CPUH PARTY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS OR HOLDINGS OF ANY CPUH PARTY THAT HAVE BEEN MADE AVAILABLE TO THE COMPANY OR ANY OF ITS REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS AND AFFAIRS OF ANY CPUH PARTY BY OR ON BEHALF OF THE MANAGEMENT OF SUCH CPUH PARTY OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY DOCUMENTS, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY EITHER THE COMPANY OR PUBCO, OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, IN EXECUTING, DELIVERING AND PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE 3 OR THE ANCILLARY DOCUMENTS, IT IS UNDERSTOOD THAT ANY COST ESTIMATES, PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY OR ON BEHALF OF EITHER THE COMPANY OR PUBCO ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF EACH OF THE COMPANY AND PUBCO, AND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY ANY CPUH PARTY OR ANY OF ITS REPRESENTATIVES IN EXECUTING, DELIVERING OR PERFORMING THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Article 5

COVENANTS

 

Section 5.1 Conduct of Business of the Company and Pubco.

 

(a) From and after the date of this Agreement until the earlier of the Intermediate Merger Effective Time or the termination of this Agreement in accordance with its terms (the “Interim Period”), the Company shall, and shall cause its Subsidiaries (including Pubco) to, except as expressly contemplated by this Agreement or any Ancillary Document, as required by applicable Law, as set forth on Section 5.1(a) of the Company Disclosure Schedules or as expressly consented to in writing by CPUH (it being agreed that any request for a consent shall not be unreasonably withheld, conditioned or delayed), (i) operate the Business in the ordinary course consistent with past practice, in all material respects and (ii) use commercially reasonable efforts to maintain and preserve intact the business organization, assets, properties and material business relations of the Company and its Subsidiaries; provided that in no event shall the Company’s and its Subsidiaries’ compliance with Section 5.1(b) constitute a breach of this Section 5.1(a); and provided further, that any action taken, or omitted to be taken in good faith, by the Company or any of its Subsidiaries, or by the Company Board or the board of directors of any Subsidiary, to the extent such act or omission is reasonably determined by the Company, such Subsidiary, the Company Board or the board of directors of the relevant Subsidiary to be reasonably necessary or advisable to comply with any Pandemic Measures and is taken to preserve the continuity of the Business and/or the health and safety of the Company’s employees, shall in no event be deemed to constitute a breach of this Section 5.1; provided, however, that the Company shall give CPUH prior written notice of any such act or omission to the extent reasonably practicable (and consider in good faith any suggestions or modifications from CPUH with respect thereto) and, in the event that it is not reasonably practicable for the Company to give the prior written notice described in this clause, the Company shall instead give such written notice to CPUH promptly after such act or omission.

 

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(b) Without limiting the generality of the foregoing, during the Interim Period, the Company shall, except as expressly contemplated by this Agreement or any Ancillary Document, including the Company’s consummation of the Incremental Financing, as required by applicable Law, as set forth on Section 5.1(b) of the Company Disclosure Schedules or as expressly consented to in writing by CPUH (such consent, other than in the case of Section 5.1(b)(i), (ii), (iii), (iv), (v), (vi), (viii), (xii) (solely relating to the Company’s directors and officers), (xvi), (xvii), (xviii), (xix), (xx), (xxi), (xxiv), (xxv) or (xxvii) to the extent that it relates to those Sections, not to be unreasonably withheld, conditioned or delayed), not do, and shall cause its Subsidiaries (including Pubco) not to do, any of the following:

 

(i) declare, set a record date for, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any of its issued and outstanding Equity Securities, or repurchase, cancel, redeem, facilitate a capital reduction in respect of or otherwise acquire any of its issued and outstanding Equity Securities or any securities convertible into (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable for its Equity Securities, or offer to do any of these things;

 

(ii) (A) merge, consolidate, combine or amalgamate with any Person, or (B) purchase or otherwise acquire (whether by merging or consolidating with, purchasing any Equity Securities in or a substantial portion of the assets of, or by any other manner) any corporation, partnership, limited liability company, joint venture, association or other business entity or organization or division thereof;

 

(iii) adjust, split, combine, subdivide, recapitalize, reclassify or otherwise effect any change in respect of any of its Equity Securities or issue any other security in respect of, in lieu of or in substitution for its Equity Securities;

 

(iv) purchase, repurchase, redeem or otherwise acquire any Equity Securities of the Company or its Subsidiaries, except for (i) the acquisition by the Company or any of its Subsidiaries of any shares of Equity Securities of the Company or its Subsidiaries in connection with the forfeiture or cancellation of such Equity Securities, (ii) the withholding of Company Shares to satisfy Tax obligations with respect to Company Options and Company RSU Awards, (iii) repurchases of Equity Securities from former employees, officers, directors, consultants or other persons who performed services for the Company or its Subsidiaries in connection with the cessation of such employment or service, or (iv) transactions between the Company and any wholly-owned Subsidiary of the Company or between wholly-owned Subsidiaries of the Company;

 

(v) adopt or propose that its stockholders approve or adopt any amendments, supplements, restatements or modifications to its Governing Documents, or form or cause to be formed any Subsidiary of the Company;

 

(vi) (A) sell, assign, transfer, convey, abandon, lease, license, allow to lapse or expire or otherwise dispose of any material assets or properties (including the Leased Real Property but excluding Intellectual Property Rights), other than obsolete assets or properties or in the ordinary course of business, or (B) create, subject to or incur any Lien (other than a Permitted Lien) in respect of any material assets or properties (including the Leased Real Property but excluding Intellectual Property Rights);

 

(vii) acquire any ownership interest in any real property;

 

(viii) transfer, issue, deliver, sell, pledge, grant or otherwise directly or indirectly dispose of, or subject to a Lien, (A) any of its Equity Securities or the Equity Securities of any Subsidiary, as applicable, or (B) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating it to transfer, issue, deliver, sell, pledge, grant or otherwise directly or indirectly dispose of, or subject to a Lien, any of its Equity Securities or the Equity Securities of any Subsidiary, as applicable, in each case, other than in connection with the Revenue Interest Financing (solely pursuant to the terms of the agreements underlying such arrangements set forth in the forms thereof made available to CPUH), pursuant to the terms of the Company Convertible Notes as a result of the Convertible Notes Conversion or the exercise of any Company Option or Company Warrant pursuant to the terms thereof or issuance of Company Common Stock upon the vesting of any Company RSU Award;

 

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(ix) (A) incur, create, assume or otherwise become liable for (whether directly, contingently or otherwise) or guarantee for the benefit of another Person, any Indebtedness in excess of $1,000,000 (other than the Revenue Interest Financing solely pursuant to the terms of the agreements underlying such arrangements set forth in the forms thereof made available to CPUH), and equipment financing and trade payables incurred in the ordinary course of Business), individually or in the aggregate or (B) issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Subsidiary of the Company;

 

(x) enter into, amend, modify, waive any material benefit or right under, novate, assign, assume or terminate or rescind any Material Contract or any Government Contract or any Contract that would be a Material Contract or Government Contract if entered into prior to the date hereof (excluding, for the avoidance of doubt, any expiration or automatic extension or renewal of any such Material Contract or Government Contract or Contract that would be a Material Contract if entered into prior to the date hereof pursuant to its terms, or entering into additional work orders pursuant to, and in accordance with the terms of, any Material Contract or Government Contract);

 

(xi) make any loans, advances or capital contributions of money or other property to, or guarantees for the benefit of, or any investments in, any Person, other than (A) the reimbursement of expenses of employees in the ordinary course of business, (B) among the Company and its Subsidiaries and (C) prepayments and deposits paid to suppliers of the Company and its Subsidiaries in the ordinary course of business;

 

(xii) except as required by Law or under the terms of any Employee Benefit Plan as in effect on the date of this Agreement, (A) amend or modify in any respect, adopt, enter into, alter, waive any benefit or right under or terminate or rescind any Employee Benefit Plan or any benefit or compensation plan, policy, program or Contract that would be an Employee Benefit Plan if in effect as of the date of this Agreement, (B) increase or agree to increase the compensation, bonus or other material benefits payable, or pay or agree to pay any bonus (other than any bonus payable in respect of 2022 that is paid in the ordinary course of business consistent with past practice) to, any current or former director, officer, manager, employee or other individual service provider, other than, in each case, individual annual and merit-based raises in the salary or wages of any current employee of up to fifty percent (50%) of such employee’s salary or wages as of the date of this Agreement, (C) take any action to accelerate any payment, right to payment or benefit, or the vesting or funding of any payment, right to payment or benefit, payable or to become payable to any current or former director, officer, manager, employee or other individual service provider, (D) pay or agree to pay any severance or change in control pay or benefits, retention pay or benefits or any similar payments or benefits, or otherwise increase the severance or change in control pay or benefits, retention pay or benefits or any similar payments or benefits of any current or former executive, director, manager, officer, employee or other individual service provider, or (E) grant any equity or equity-based awards or interests to any current or former employee, officer, director or individual service provider, other than grants to current and new employees, officers, directors and service providers pursuant to the Company Equity Plans up to the aggregate number of shares set forth on Section 5.1(b)(xii) of the Company Disclosure Schedules;

 

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(xiii) other than with respect to Key Employees of the Company or its Subsidiaries who receive annual compensation less than $300,000, (A) terminate the employment of any Key Employee of the Company or its Subsidiaries other than for cause (as determined by the Company or its Subsidiaries in their sole reasonable discretion) or (B) hire any Key Employees of the Company or its Subsidiaries whose employment is not terminable at will;

 

(xiv) except as required by Law, (A) modify, extend, or enter into any labor agreement, collective bargaining agreement or any other labor-related agreements or arrangements with any labor union, labor organization or works council, or (B) recognize or certify any labor union, labor organization, works council, or group of employees of the Company or its Subsidiaries as the bargaining representative for any employees of the Company or its Subsidiaries;

 

(xv) waive the restrictive covenant obligations of any current or former employee or independent contractor of the Company or its Subsidiaries;

 

(xvi) make, change or revoke any material Tax election or material Tax accounting method, file any material Tax Return in a manner inconsistent with past practice, amend any material Tax Return, enter into any agreement with a Governmental Entity with respect to a material amount of Taxes, settle or compromise any material Tax liability or any claim or assessment by a Governmental Entity in respect of any material amount of Taxes, surrender or allow to expire any right to claim a refund of a material amount of Taxes, consent to any extension or waiver of the statutory period of limitation applicable to any material Tax attribute, claim or assessment or enter into any Tax sharing or similar agreement (other than any agreement entered into in the ordinary course of business, the primary purpose of which does not relate to Taxes);

 

(xvii) waive, release, compromise, settle or satisfy any pending or threatened claim or compromise or settle any Liability, whether by Contract or otherwise, the performance of which would, at any time (A) involve the payment of more than $1,000,000 in the aggregate, (B) impose any material, non-monetary obligations on it (or CPUH or any of its Affiliates after the Closings), (C) require it to accept or concede material injunctive relief or (D) involve a Governmental Entity or alleged criminal wrongdoing;

 

(xviii) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction;

 

(xix) change the Company’s accounting principles, policies, procedures, practices or methods in any material respect, or make any change which would materially affect the reported consolidated assets, liabilities or results of operations of the Company and its Subsidiaries, other than changes that are made in accordance with GAAP or PCAOB standards;

 

(xx) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finder’s fee or other commission in connection with the transactions contemplated by this Agreement and the Ancillary Documents;

 

(xxi) enter into any Contract or other arrangement that materially restricts its or its Affiliates’ ability to engage or compete in any material line of business or enter into a new material line of business (other than Contracts with distributors entered into in the ordinary course of business consistent with past practice);

 

(xxii) make any capital expenditure that in the aggregate exceeds $1,000,000, other than any capital expenditure (or series of related capital expenditures) consistent with the capital expenditures budget set forth in Section 5.1(b)(xxii) of the Company Disclosure Schedules;

 

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(xxiii) voluntarily fail to maintain in full force and effect material insurance policies covering it and its Affiliates and their respective properties, assets and businesses in a form and amount consistent with past practice;

 

(xxiv) enter into any transaction or amend in any material respect any existing Contract with any Company Related Party excluding, to the extent permitted under Section 5.1(b)(xii), ordinary course payments of annual compensation, provision of benefits or reimbursement of expenses;

 

(xxv) make any Change of Control Payment that is not set forth on Section 3.2(d) of the Company Disclosure Schedules;

 

(xxvi) sell, assign, transfer, convey, abandon, lease, license, allow to lapse or expire, or otherwise dispose of, fail to take any action necessary to maintain, enforce or protect, or create or incur any Lien (other than Permitted Liens) on, any Intellectual Property Rights, except granting non-exclusive licenses pursuant to clinical trial agreements, supply agreements or distribution agreements in which clinical trials, supply services or distribution services are being performed for the Company or any of its Subsidiaries, in each case, that are entered into by the Company or any of its Subsidiaries in the ordinary course of business and where the grant of rights to use any Intellectual Property Rights are incidental, and not material to, any performance under each such agreement; or

 

(xxvii) enter into any Contract to take or cause to be taken, or otherwise become obligated to take or cause to be taken, any of the actions set forth in this Section 5.1(b).

 

Notwithstanding anything in this Section 5.1 or this Agreement to the contrary, nothing set forth in this Agreement shall give CPUH, directly or indirectly, the right to control or direct the operations of the Company prior to the Intermediate Merger Closing.

 

Section 5.2 Efforts to Consummate.

 

(a) Subject to the terms and conditions herein provided, each of the Parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective, as promptly as reasonably practicable, the transactions contemplated by this Agreement (including (i) the satisfaction, but not waiver, of the conditions to the Closings set forth in Article 6 and, in the case of any Ancillary Document to which such Party will be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement, (ii) using reasonable best efforts to solicit proxies in connection with the CPUH Stockholder Approval, (iii) using reasonable best efforts to obtain the PIPE Financing on the terms and subject to the conditions set forth in the Subscription Agreements, the Revenue Interest Financing, and the Fortress Financing on the terms set forth in the applicable agreements made available to CPUH and (iv) the Company taking, or causing to be taken, all actions necessary or advisable to cause all Related Party Contracts and accounts set forth on Section 5.2(a) of the Company Disclosure Schedules to be terminated or settled, effective as of the Intermediate Merger Closing without any further obligations or liabilities to the Company or any of its Affiliates (including, from and after the Intermediate Merger Effective Time, the Surviving Corporation)), and obtaining evidence reasonably satisfactory to CPUH that such agreements and accounts have been terminated or settled, effective prior to the Intermediate Merger Closing. Without limiting the generality of the foregoing, each of the Parties shall use reasonable best efforts to obtain, file with or deliver to, as applicable, any Consents of any Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and the Ancillary Documents. The Company shall pay any filing fees required in connection with obtaining such Consents of Governmental Entities (including that the Company shall pay the HSR Act filing fee (the “HSR Fee”)); provided that, subject to Section 8.6, each Party shall bear its out-of-pocket costs and expenses in connection with the preparation of any such Consents. Each Party shall (A) make any appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and in any event within ten (10) Business Days) following the date of this Agreement, and (B) respond as promptly as reasonably practicable to any requests by any Governmental Entity for additional information and documentary material that may be requested pursuant to the HSR Act. CPUH shall promptly inform the Company of any communication between any CPUH Party, on the one hand, and any Governmental Entity, on the other hand, and the Company shall promptly inform CPUH of any communication between the Company or any of its Affiliates, on the one hand, and any Governmental Entity, on the other hand, in either case, regarding any of the transactions contemplated by this Agreement or any Ancillary Document. Without limiting the foregoing, each Party and their respective Affiliates shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated hereby or by the Ancillary Documents, except with the prior written consent of CPUH and the Company. Nothing in this Section 5.2 obligates any Party or any of its Affiliates to agree to (1) sell, license or otherwise dispose of, or hold separate and agree to sell, license or otherwise dispose of, any entities, assets or facilities, (2) terminate, amend or assign existing relationships and contractual rights or obligations, including licenses, or (3) enter into new licenses or other agreements. No Party shall agree to any of the foregoing measures with respect to any other Party, except with CPUH’s and the Company’s prior written consent.

 

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(b) During the Interim Period, and unless prohibited by applicable Law, the CPUH Parties, on the one hand, and the Company and Pubco, on the other hand, shall give counsel for the Company (in the case of any CPUH Party) or CPUH (in the case of the Company and Pubco) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written communication to any Governmental Entity relating to the transactions contemplated by this Agreement or the Ancillary Documents. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with, in the case of any CPUH Party, the Company, or, in the case of the Company and Pubco, CPUH in advance.

 

(c) Notwithstanding anything to the contrary in the Agreement, in the event that this Section 5.2 conflicts with any other covenant or agreement in this Article 5 that is intended to specifically address certain subject matter, then such other covenant or agreement shall govern and control solely to the extent of such conflict.

 

Section 5.3 Confidentiality and Access to Information.

 

(a) The Parties hereby acknowledge and agree that the information being provided in connection with this Agreement and the consummation of the transactions contemplated hereby is subject to the terms of the Confidentiality Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, in the event that this Section 5.3(a) or the Confidentiality Agreement conflicts with any other covenant or agreement contained herein that contemplates the disclosure, use or provision of information or otherwise, then such other covenant or agreement contained herein shall govern and control to the extent of such conflict.

 

(b) During the Interim Period, upon reasonable advance written notice, the Company shall provide, or cause to be provided, to CPUH and its Representatives during normal business hours reasonable access to the directors, officers, books and records of the Company and its Subsidiaries (in a manner so as to not interfere with the normal business operations of the Company or, in light of COVID-19 or any Pandemic Measures, jeopardize the health or safety of any employee of the Company (which may require remote and telephonic meetings)). Notwithstanding the foregoing, the Company shall not be required to provide, or cause to be provided, to CPUH or any of its Representatives any information (i) if, and to the extent, doing so would (A) violate any Law to which the Company is subject, (B) result in the disclosure of any trade secrets, (C) violate any legally-binding obligation of the Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), the Company shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law, and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if the Company, on the one hand, and any CPUH Party or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.

 

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(c) During the Interim Period, upon reasonable advance written notice, CPUH shall provide, or cause to be provided, to the Company, Pubco and their respective Representatives during normal business hours reasonable access to the directors, officers, books and records of the CPUH Parties (in a manner so as to not interfere with the normal business operations of the CPUH Parties or, in light of COVID-19 or any Pandemic Measures, jeopardize the health or safety of any employee of the CPUH Parties (which may require remote and telephonic meetings)). Notwithstanding the foregoing, CPUH shall not be required to provide, or cause to be provided, to the Company, Pubco or any of their respective Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any CPUH Party is subject, (B) result in the disclosure of any trade secrets, (C) violate any legally-binding obligation of any CPUH Party with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any CPUH Party under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), CPUH shall use, and shall cause the other CPUH Parties to use, commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law, and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), or (ii) if a CPUH Party, on the one hand, and the Company, Pubco or any of their respective Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that CPUH shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.

 

(d) The Parties hereby acknowledge and agree that the Confidentiality Agreement shall be automatically terminated effective as of the Intermediate Merger Closing without any further action by any Party or any other Person.

 

Section 5.4 Public Announcements.

 

(a) Subject to Section 5.4(b), 5.7 and 5.8, none of the Parties or any of their respective Representatives or Affiliates shall issue any press releases or make any public announcements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of, prior to the Closings, the Company and CPUH or, after the Closings, the Surviving Corporation; provided, however, that each Party may make any such announcement or other communication (i) if such announcement or other communication is required by applicable Law, in which case (A) prior to the Closings, the disclosing Party and its Representatives shall, where permitted under applicable Law and feasible with regard to any time limits imposed thereby in relation to making such announcement or other communication, use reasonable best efforts to consult with the Company, if the disclosing party is any CPUH Party, or with CPUH, if the disclosing party is the Company or Pubco, prior to making such announcement or other communication, to review such announcement or communication and to give such non-disclosing party the opportunity to comment thereon, in which case the disclosing Party shall consider such comments in good faith, or (B) after the Closings, the disclosing Party and its Representatives shall, where permitted under applicable Law and feasible with regard to any time limits imposed thereby in relation to making such announcement or other communication, use reasonable best efforts to consult with the Surviving Corporation prior to making such announcement or other communication and to consider any comments of the Surviving Corporation thereon in good faith, (ii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5.4, and (iii) upon advance written notice to the other Party, to Governmental Entities in connection with any Consents required to be made under this Agreement, the Ancillary Documents or in connection with the transactions contemplated hereby or thereby. Notwithstanding anything to the contrary in this Section 5.4 or otherwise in this Agreement, the Parties agree that the CPUH Parties, the Sponsor and their respective Representatives may provide general information about the subject matter of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby to any direct or indirect current or prospective investor or in connection with normal fund raising or related marketing or informational or reporting activities.

 

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(b) The initial press release concerning this Agreement and the transactions contemplated hereby shall be a joint press release in the form agreed by the Company and CPUH prior to the execution of this Agreement and such initial press release (the “Signing Press Release”) shall be released as promptly as reasonably practicable after the execution of this Agreement. Promptly after the execution of this Agreement, CPUH shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by, and in compliance with, the Securities Laws, which the Company shall have the opportunity to review and comment upon prior to such filing and CPUH shall consider such comments in good faith. The Company, on the one hand, and CPUH, on the other hand, shall mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by either the Company or CPUH, as applicable) a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”) prior to the CPUH Merger Effective Time, and, on the Closing Date, the Parties shall cause the Closing Press Release to be released. Promptly after the Intermediate Merger Effective Time (but in any event within four (4) Business Days after the Intermediate Merger Effective Time), CPUH shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release, a description of the Closings and the required pro forma financial statements and the historical financial statements prepared by the Company and its accountants, in each case, as required by Securities Laws, which the Company shall have the opportunity to review and comment upon prior to such filing and CPUH shall consider such comments in good faith. In connection with the preparation of each of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing, each Party shall, upon written request by any other Party, furnish such other Party with all information concerning itself, its directors, officers and equityholders, and such other matters as may be reasonably necessary for such press release or filing.

 

Section 5.5 Tax Matters.

 

(a) The Parties (i) shall not knowingly take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment and (ii) shall not take any position inconsistent with (whether in audits, Tax Returns or otherwise), such treatment unless required to do so pursuant to a “determination” (within the meaning of Section 1313(a) of the Code).

 

(b) The Parties hereby adopt this Agreement as a “plan of reorganization” with respect to the Mergers within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a), for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations thereunder.

 

(c) CPUH and the Company shall use commercially reasonable efforts to cooperate, as and to the extent reasonably requested by each of them, in connection with the filing or amendment of any Tax Returns or any audit or other proceeding with respect to Taxes of the Surviving Corporation, the Surviving Subsidiary Company, and with each other and their respective counsel to document and support the Tax treatment of the Mergers in a manner consistent with the Intended Tax Treatment letters. Such cooperation shall include the retention and (upon the other’s reasonable request) the provision of records and information which are reasonably relevant to any such Tax Returns or audit or other proceeding and within such Party’s possession or obtainable without material cost or expense, and making employees or other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.

 

(d) If, in connection with the preparation and filing of the Registration Statement/Proxy Statement, the SEC (or its staff) requests or requires that Tax opinions be prepared and submitted in such connection, each Party shall use reasonable best efforts to deliver customary Tax representation letters (not to be inconsistent with this Agreement) satisfactory to the applicable Tax counsel, dated and executed as of the date the Registration Statement/Proxy Statement shall have been declared effective by the SEC or such other date(s) as determined by such Tax counsel in connection with the preparation and filing of the Registration Statement/Proxy Statement. If the SEC (or its staff) requests or requires any opinion on the United States federal income tax treatment of, or the United States federal income tax consequences to Company Stockholders of, the Intermediate Merger or Final Merger (or other United States federal income tax consequences to Company Stockholders), the Company shall cause such opinion (as so required or requested) to be provided by one of its advisors. If the SEC (or its staff) requests or requires any opinion on the United States federal income tax treatment of the CPUH Merger or other United States federal income tax consequences to CPUH Stockholders, CPUH shall cause such opinion (as so required or requested) to be provided by one of its advisors.

 

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Section 5.6 Exclusive Dealing.

 

(a) Except in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, during the Interim Period, the Company shall not, and shall cause its Representatives and Affiliates not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Affiliates and Representatives), or otherwise afford access to the business, properties, assets or personnel of the Company or any of its Subsidiaries, in each case, in connection with, or that would reasonably be expected to lead to, a Company Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a Company Acquisition Proposal, (iv) prepare or take any steps in connection with a public offering of any Equity Securities of the Company (or any Affiliate or successor of the Company), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing.

 

(b) The Company shall (i) notify CPUH promptly upon receipt of any Company Acquisition Proposal by the Company or Pubco, describing the terms and conditions of any such Company Acquisition Proposal in reasonable detail (including the identity of the Person(s) making such Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (ii) keep CPUH fully informed on a current basis of any modifications to such offer or information.

 

(c) Except in connection with this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby (including the PIPE Financing), during the Interim Period, the CPUH Parties shall not, and each of them shall direct their Representatives not to, directly or indirectly (i) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a CPUH Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person (other than to the Parties and their respective Affiliates and Representatives), or otherwise afford access to the business, properties, assets or personnel of the CPUH Parties, in each case, in connection with, or that would reasonably be expected to lead to, a CPUH Acquisition Proposal, (iii) enter into any Contract or other arrangement or understanding regarding a CPUH Acquisition Proposal, (iv) prepare or take any steps in connection with an offering of any securities of any CPUH Party (or any Affiliate or successor of any CPUH Party), or (v) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any Person to do or seek to do any of the foregoing. CPUH agrees to (A) notify the Company promptly upon any CPUH Party obtaining any CPUH Acquisition Proposal, and to describe the terms and conditions of any such CPUH Acquisition Proposal in reasonable detail (including the identity of any Person making such CPUH Acquisition Proposal, unless any CPUH Party is bound by any confidentiality obligation entered into prior to the date hereof prohibiting the disclosure of such identity), and (B) keep the Company reasonably informed on a reasonably current basis of any modifications to such offer or information.

 

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Section 5.7 Preparation of Registration Statement/Proxy Statement and Resale Registration Statement. As promptly as practicable following the date of this Agreement, (a) CPUH, the Company and Pubco shall jointly prepare and CPUH and Pubco, as applicable, shall file with the SEC, mutually acceptable materials which shall include the proxy statement/prospectus (as amended or supplemented from time to time, the “Proxy Statement/Prospectus”) to be filed by CPUH with the SEC as part of the Registration Statement/Proxy Statement of Pubco and sent to the Pre-Closing CPUH Stockholders soliciting proxies from such stockholders to obtain the CPUH Stockholders Approval at the CPUH Stockholders Meeting, (b) Pubco shall prepare (with CPUH’s reasonable cooperation, including causing its Subsidiaries and Representatives to cooperate) and file with the SEC a registration statement on Form S-4 or such other applicable form, in which the Proxy Statement/Prospectus will be included as a prospectus, in connection with the registration under the Securities Act of, to the extent permitted by the rules and regulations promulgated by the SEC, the Pubco Common Stock and Assumed Warrants issuable in connection with the Intermediate Merger and the Pubco Common Stock and Pubco Warrants issuable in connection with the CPUH Merger (other than the Pubco Common Stock and Assumed Warrants to be received by the Specified Company Support Stockholders pursuant to Section 2.1(a)(xv)) (the “Registration Statement”, and together with the Proxy Statement/Prospectus, the “Registration Statement/Proxy Statement”) and (c) Pubco shall prepare (with CPUH’s reasonable cooperation, including causing its Subsidiaries and Representatives to cooperate) and file with the SEC a registration statement on Form S-1 in connection with the registration under the Securities Act of, to the extent permitted by the rules and regulations promulgated by the SEC, the Pubco Common Stock and Assumed Warrants to be received by Specified Company Support Stockholders pursuant to Section 2.1(a)(xv), in order to enable the Surviving Corporation to file the Resale Registration Statement with the SEC as soon as reasonably practicable following the Closings, and in any event within thirty (30) days of the Closings (the “Resale Registration Statement”). Any lodgement and filing fees in connection with the filing of the Registration Statement/Proxy Statement with the SEC, and any fees and expenses incurred in connection with the preparation and distribution of the Registration Statement/Proxy Statement, shall, in each case, be borne by CPUH (the “Registration Statement Expenses”). Each of CPUH, Pubco and the Company shall use its reasonable best efforts to (i) cause the Registration Statement/Proxy Statement and the Resale Registration Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to the Company and its Subsidiaries, by the provision of audited financial statements (in accordance with PCAOB standards) of, and any other information with respect to, the Company and its Subsidiaries for all periods, and in the form, required to be included in the Registration Statement/Proxy Statement or the Resale Registration Statement, as applicable, under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC) and using reasonable best efforts to cause the Company’s auditors to deliver the required audit opinions and consents, and (ii) promptly notify the other Party of, reasonably cooperate with each other with respect to and respond promptly to any comments of the SEC or its staff; and each of CPUH, the Company and Pubco shall use its reasonable best efforts to (A) have the Registration Statement/Proxy Statement and Resale Registration Statement declared effective under the Securities Act as promptly as practicable after it is filed with the SEC, and (B) keep the Registration Statement/Proxy Statement effective through the Closings in order to permit the consummation of the transactions contemplated by this Agreement. CPUH, on the one hand, and the Company and Pubco, on the other hand, shall promptly furnish, or cause to be furnished, to the other all information concerning such Party and its Affiliates and Representatives that may be required or reasonably requested in connection with any action contemplated by this Section 5.7 or for including in any other statement, filing, notice or application made by or on behalf of CPUH or Pubco to the SEC, NYSE or in connection with the transactions contemplated by this Agreement and the Ancillary Documents (including the Signing Filing and the Closing Filing), including, for the avoidance of doubt, the Company providing for the Registration Statement/Proxy Statement its audited consolidated balance sheets as of December 31, 2022 and December 31, 2021 and its related consolidated statements of income (loss), changes in shareholders’ equity and cash flows for the fiscal years then ended, audited in accordance with applicable PCAOB auditing standards (the “Additional Company Financial Statements”), and necessary pro forma financial statements. If any Party becomes aware of any information that should be disclosed in an amendment or supplement to the Registration Statement/Proxy Statement or the Resale Registration Statement, then (1) such Party shall promptly inform, in the case of any CPUH Party, the Company thereof, or, in the case of the Company or Pubco, CPUH thereof, (2) such Party shall prepare and mutually agree upon with, in the case of CPUH, the Company and Pubco, or, in the case of the Company or Pubco, CPUH (in either case, such agreement not to be unreasonably withheld, conditioned or delayed), an amendment or supplement to the Registration Statement/Proxy Statement or the Resale Registration Statement, (3) Pubco and CPUH, as applicable, shall promptly file such mutually agreed upon amendment or supplement with the SEC, and (4) the Parties shall reasonably cooperate, if appropriate, in promptly mailing such amendment or supplement to the Pre-Closing CPUH Stockholders. The Proxy Statement/Prospectus shall include materials for the approval by the Pre-Closing CPUH Stockholders of (i) a new equity incentive plan (the “New Equity Incentive Plan”) and (ii) to the extent required by applicable Securities Laws or the NYSE listing requirements, the new ESPP. The New Equity Incentive Plan will provide for awards of incentive stock options, non-statutory stock options and other stock-based awards (including restricted stock units) as determined by the administrator of the New Equity Incentive Plan in its sole discretion. The Company shall, with the assistance of a compensation consultant selected by the Company (with all fees and expenses of such consultant to be borne solely by the Company (the “New Equity Incentive Plan Fees”)), provide a proposed form of the New Equity Incentive Plan within 30 days after the date of this Agreement. CPUH shall have a right to review and approve the New Equity Incentive Plan in advance, such approval not to be unreasonably withheld, conditioned or delayed, and the Parties shall otherwise cooperate to include such terms and conditions as are customary and appropriate for the New Equity Incentive Plan. Prior to the Intermediate Merger Effective Time, Pubco shall approve and adopt the New Equity Incentive Plan. To the extent not prohibited by Law, Pubco shall as promptly as reasonably practicable advise the Company of the time of effectiveness of the Registration Statement/Proxy Statement, the issuance of any stop order relating thereto or the suspension of the qualification of Pubco Common Stock, Pubco Warrants and Assumed Warrants for offering or sale in any jurisdiction, and Pubco, CPUH and the Company shall each use its reasonable best efforts to have any such stop order or suspension lifted, reversed or otherwise terminated. Each of the Parties hereto shall use reasonable best efforts to ensure that none of the information related to it or any of its Representatives, supplied by or on its behalf for inclusion or incorporation by reference in the Registration Statement/Proxy Statement or the Resale Registration Statement will, at the time the Registration Statement/Proxy Statement or the Resale Registration Statement, respectively, is filed with the SEC, at each time at which it is amended, or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

 

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Section 5.8 CPUH Stockholder Approval. As promptly as reasonably practicable following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act, CPUH shall (a) duly give notice of, and (b) in any case within twenty-five (25) Business Days of such effectiveness, duly convene and hold a meeting of its stockholders (the “CPUH Stockholders Meeting”) in accordance with the Governing Documents of CPUH, for the purposes of obtaining the CPUH Stockholder Approval and, if applicable, any approvals related thereto, and providing its stockholders with the opportunity to elect to effect a CPUH Stockholder Redemption. Except as required by applicable Law, CPUH shall, through its board of directors, recommend to its stockholders (i) the adoption and approval of this Agreement and each Ancillary Document to which CPUH is a party and the transactions contemplated hereby and thereby (including the Mergers), (ii) to the extent required by applicable Securities Laws or the NYSE listing requirements, the adoption and approval of the issuance of Pubco Common Stock in connection with the transactions contemplated by this Agreement, as required by NYSE listing requirements, (iii) to the extent required by applicable Securities Laws or the NYSE listing requirements, the adoption and approval of the Required Governing Document Proposals, (iv) to the extent required by applicable Securities Laws or the NYSE listing requirements, the adoption of the New Equity Incentive Plan and the New ESPP, (v) the adoption and approval of each other proposal that either the SEC or NYSE (or the respective staff members thereof) indicates is necessary in its comments to the Registration Statement/Proxy Statement or in correspondence related thereto, (vi) the adoption and approval of each other proposal reasonably agreed by CPUH, Pubco and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, and (vii) the adoption and approval of a proposal for the adjournment of the CPUH Stockholders Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in clauses (i) through (vii), the “Required Transaction Proposals”); provided that CPUH may postpone or adjourn the CPUH Stockholders Meeting (A) to solicit additional proxies for the purpose of obtaining the CPUH Stockholder Approval, (B) for the absence of a quorum or (C) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that CPUH has determined, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing CPUH Stockholders prior to the CPUH Stockholders Meeting; provided, further, that, without the consent of the Company, unless required by Law, (i) CPUH may only adjourn the CPUH Stockholders Meeting two (2) times, and (ii) in no event shall CPUH adjourn the CPUH Stockholders Meeting for more than fifteen (15) Business Days later than the most recently adjourned meeting or to a date that is beyond the Termination Date. Except as required by applicable Law, the recommendation of the board of directors of CPUH contemplated by the preceding sentence shall be included in the Registration Statement/Proxy Statement.

 

Section 5.9 Merger Sub and Pubco Approvals.

 

(a) As promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, (a) CPUH, as the sole stockholder of Merger Sub I, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub I is or will be a party and the transactions contemplated hereby and thereby (including the Mergers) and (b) CPUH, as the sole member of Merger Sub II, will approve and adopt this Agreement, the Ancillary Documents to which Merger Sub II is or will be a party and the transactions contemplated hereby and thereby (including the Mergers).

 

(b) As promptly as reasonably practicable (and in any event within one Business Day) following the date of this Agreement, (a) the Company, as the sole stockholder of Pubco, will approve and adopt this Agreement, the Ancillary Documents to which Pubco is or will be a party (except for the Pubco Governing Documents, the New ESPP and the New Equity Incentive Plan, which shall be approved, pursuant to Section 5.19, promptly following the mutual agreement between CPUH and the Company of the forms thereof and, in any event, prior to the initial filing of the Registration Statement/Proxy Statement with the SEC) and the transactions contemplated hereby and thereby (including the Mergers) (together with the stockholder consent of Pubco contemplated by Section 5.19, the “Pubco Stockholder Written Consent”).

 

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Section 5.10 Conduct of Business of CPUH. During the Interim Period, CPUH shall not, except as expressly contemplated by this Agreement or any Ancillary Document (including, for the avoidance of doubt, in connection with the CPUH Merger, the PIPE Financing or any Sponsor Loans), as required by applicable Law, as set forth on Section 5.10 of the CPUH Disclosure Schedules, to reasonably comply with any applicable Pandemic Measures or as expressly consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), do any of the following:

 

(a) seek an approval from the Pre-Closing CPUH Stockholders to amend, supplement, restate or modify the Trust Agreement, the Warrant Agreement or the Governing Documents of any CPUH Party or any of their Subsidiaries, or otherwise adopt any such amendments, supplements, restatements or modifications to;

 

(b) declare, set aside, make or pay a dividend on, or make any other distribution or payment in respect of, any issued and outstanding Equity Securities of CPUH or any of its Subsidiaries, or repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any issued and outstanding Equity Securities of CPUH or any of its Subsidiaries, as applicable, other than in connection with the CPUH Stockholder Redemption;

 

(c) split, combine or reclassify any of its capital stock or other Equity Securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock;

 

(d) incur, create, guarantee or assume (whether directly, contingently or otherwise) any Indebtedness, except (i) for Indebtedness for borrowed money in an amount not to exceed $1,000,000 in the aggregate and (ii) as permitted pursuant to Section 5.11;

 

(e) make any loans or advances to, or capital contributions in, any other Person, other than to, or in, CPUH or any of its Subsidiaries;

 

(f) issue any Equity Securities of CPUH or any of its Subsidiaries or grant any options, warrants or stock appreciation rights with respect to Equity Securities of CPUH or any of its Subsidiaries;

 

(g) enter into, renew, modify or revise any CPUH Related Party Transaction (or any Contract or agreement that if entered into prior to the execution and delivery of this Agreement would be a CPUH Related Party Transaction), other than the entry into any Contract with a CPUH Related Party with respect to the incurrence of Indebtedness permitted by Section 5.10(d);

 

(h) engage in any activities or business, or incur any material Liabilities, other than with respect to any activities, business or Liabilities that are (i) either otherwise permitted under this Section 5.10 (including, for the avoidance of doubt, any activities, business or Liabilities contemplated by, or Liabilities incurred in connection with, or that are otherwise incidental or attendant to, this Agreement or any Ancillary Document, the performance of any covenants or agreements hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby) or in accordance with or consented to by the Company pursuant to this Section 5.10, (ii) in connection with or incidental or related to its continuing corporate (or similar) existence or it being (or continuing to be) a public company listed on NYSE, or (iii) which are administrative or ministerial in nature and, in the case of this clause (iii), which are not material;

 

(i) authorize, recommend, propose or announce an intention to adopt, or otherwise effect, a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction involving CPUH or its Subsidiaries;

 

(j) enter into any Contract with any broker, finder, investment banker or other Person under which such Person is or will be entitled to any brokerage fee, finder’s fee or other commission in connection with the transactions contemplated by this Agreement;

 

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(k) make, change or revoke any material Tax election or material Tax accounting method, file any material Tax Return in a manner inconsistent with past practice, amend any material Tax Return, enter into any agreement with a Governmental Entity with respect to a material amount of Taxes, settle or compromise any claim or assessment by a Governmental Entity in respect of any material amount of Taxes, surrender any right to claim a refund a material amount of Taxes, consent to any extension or waiver of the statutory period of limitation applicable to any material Tax claim or assessment, or enter into any Tax sharing or similar agreement (other than any agreement entered into in the ordinary course of business, the primary purpose of which does not relate to Taxes);

 

(l) waive, release, compromise, settle or satisfy any pending or threatened material claim (which shall include, but not be limited to, any pending or threatened Proceeding);

 

(m) make any change in any method of financial accounting or financial accounting principles, policies, procedures or practices except changes that are made (i) in accordance with PCAOB standards, or (ii) as required by any Securities Law or any Order, directive, guideline, recommendation, statement, comment or guidance issued, passed, approved, published, promulgated or released by, the SEC, following reasonable prior consultation with the Company;

 

(n) create any new Subsidiary (other than Merger Sub I and Merger Sub II); or

 

(o) enter into any Contract to take, or cause to be taken, any of the actions set forth in this Section 5.10.

 

Notwithstanding anything in this Section 5.10 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of CPUH, and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict the ability of, CPUH from using the funds held by CPUH outside the Trust Account to pay any Liabilities or other expenses of CPUH or from otherwise distributing or paying over any funds held by CPUH outside the Trust Account to the Sponsor or any of its Affiliates, in each case, prior to the Closings; provided, that prior to any distribution or payment of any funds to the Sponsor or any of its Affiliates pursuant to the foregoing sentence, CPUH shall cause any Indebtedness of CPUH payable or owing to the Sponsor or any of its Affiliates to be paid in full and discharged with no further Liability or obligation of CPUH.

 

Section 5.11 CPUH Borrowings; Indebtedness. During the Interim Period, CPUH shall be allowed to borrow from Sponsor or any of its Affiliates to meet CPUH’s reasonable funding requirements, with any such loans to be made on a non-interest bearing basis (including under any existing loans between CPUH and Sponsor, working capital loans or pursuant to that certain Administrative Services Agreement, dated February 4, 2021, between CPUH and Sponsor) (collectively, the “Sponsor Loans”). On the Closing Date, (a) $2,500,000 of such Sponsor Loans outstanding as of the Closing Date shall be paid at the Closing from the funds available in the Trust Account or from proceeds of the PIPE Financing or Revenue Interest Financing (or, if not so paid, by the Surviving Corporation), by wire transfer of immediately available funds to one or more accounts designated by Sponsor or such Affiliate and at the Intermediate Merger Effective Time, (b) in the event the aggregate amount of Sponsor Loans outstanding as of the Closing Date is greater than $2,500,000 (such excess, the “Sponsor Loan Excess”), the Sponsor Loan Excess, up to an amount not to exceed $5,250,000 (the “Sponsor Loan Equity Conversion Cap”), outstanding as of the Closing Date shall be converted into shares of Pubco Common Stock, equivalent in value to the amount of such Sponsor Loan Excess (capped at the Sponsor Loan Equity Conversion Cap), at a price per share of Pubco Common Stock of $7.04 and (c) with respect to any Sponsor Loan Excess above the Sponsor Loan Equity Conversion Cap (such excess, the “Extinguishable Sponsor Loan Excess”), such Extinguishable Sponsor Loan Excess shall be fully extinguished and forgiven and CPUH and the Surviving Corporation shall have no obligation to pay such excess amounts; provided that, notwithstanding anything in this Agreement to the contrary, the Company may, in its sole discretion, pursuant to an election by the Company made prior to the Closings, repay on the Closing Date some or all of the Sponsor Loan Excess, up to the Sponsor Loan Equity Conversion Cap, in cash.

 

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Section 5.12 Stock Exchange Listing.

 

(a) From the date hereof through the Closing Date, CPUH shall ensure CPUH remains listed as a public company on NYSE. Each of CPUH, the Company and Pubco shall use its reasonable best efforts to, as promptly as reasonably practicable after the date of this Agreement (and in any event, as of immediately prior to or at the Intermediate Merger Effective Time), (a) cause the Pubco Common Stock to be issued in connection with the transactions contemplated by this Agreement, including the shares of Pubco Common Stock to be issued under this Agreement as Aggregate Intermediate Merger Closing Merger Consideration and CPUH Merger Consideration, and the Pubco Warrants (and the Pubco Common Stock issuable upon exercise thereof) to be approved for listing on the NYSE, as promptly as practicable following the issuance thereof, subject to official notice of issuance, on or prior to the Closing Date, (b) satisfy any applicable initial and continuing listing requirements of NYSE, and (c) cause the name of Pubco to be changed to “Allurion Technologies, Inc.” with the trading ticker “ALUR,” with effect from the Closing Date. During the Interim Period, each Party shall, as promptly as reasonably practicable, notify the other Parties of any material communications or correspondence received by such Party from NYSE regarding compliance with the rules and regulations of NYSE, and any potential suspension or delisting action contemplated or threatened by NYSE.

 

(b) From the date hereof through the CPUH Merger Effective Time, CPUH will keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Securities Laws.

 

(c) Prior to the CPUH Merger Effective Time, CPUH shall cooperate with Pubco and, with respect to CPUH, shall use its commercially reasonable efforts to take, or cause to be taken, all actions reasonably necessary to de-list all securities of CPUH from NYSE and de-register such securities under the Exchange Act as soon as practicable following the CPUH Merger Effective Time.

 

Section 5.13 Trust Account. Upon satisfaction or, to the extent permitted by applicable Law, waiver of the conditions set forth in Article 6 and provision of notice thereof to the Trustee, (a) at the Intermediate Merger Closing, CPUH shall (i) cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) make all appropriate arrangements to cause the Trustee to (A) pay as and when due all amounts, if any, payable to the Pre-Closing CPUH Stockholders pursuant to the CPUH Stockholder Redemption, (B) pay the amounts, if any, due to the underwriters of CPUH’s initial public offering for their deferred underwriting commissions as set forth in the Trust Agreement and (C) immediately thereafter, pay all remaining amounts then available in the Trust Account to CPUH in accordance with the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

 

Section 5.14 Company Stockholder Approval. As promptly as reasonably practicable (and in any event within forty-eight (48) hours) following the date that the Registration Statement becomes effective (the “Company Stockholder Written Consent Deadline”), the Company shall obtain and deliver to CPUH a true and correct copy of a written consent (in form and substance reasonably satisfactory to CPUH) approving this Agreement, the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Mergers) that is duly executed by the Company Stockholders that hold at least the requisite number of issued and outstanding Company Shares required to approve and adopt such matters in accordance with the DGCL and the Company’s Governing Documents (including the Company Stockholder Approval) (the “Company Stockholder Written Consent”). The Company shall recommend to the Company Stockholders the approval and adoption of this Agreement and the Ancillary Documents to which the Company is or will be a party and the transactions contemplated hereby and thereby (including the Mergers). The Company shall provide to holders of the Company Convertible Notes and the Company Warrants any notices required to be delivered to such holders, and shall provide CPUH and its counsel reasonable opportunity to review and comment on any notices or deliverables pursuant to the documentation governing such Company Convertible Notes or Company Warrants prior to the dispatch or making thereof and shall incorporate all reasonable comments provided by CPUH and its counsel with respect thereto.

 

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Section 5.15 CPUH Indemnification; Directors’ and Officers’ Insurance.

 

(a) Each Party agrees that (i) all rights to advancement, indemnification, limitations on liability or exculpation now existing in favor of the directors and officers of each CPUH Party, as provided in the applicable CPUH Party’s Governing Documents in effect as of immediately prior to the CPUH Merger Effective Time, in either case, solely with respect to any acts, errors or omissions occurring on or prior to the CPUH Merger Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the CPUH Merger Effective Time for a period of six (6) years, and (ii) the Surviving Corporation will perform and discharge, or cause to be performed and discharged, all obligations to provide such advancement, indemnity, limitations on liability and exculpation during such six (6)-year period. During such six (6)-year period, the Surviving Corporation shall advance, or caused to be advanced, expenses in connection with such indemnification as provided in the applicable CPUH Party’s Governing Documents or other applicable agreements in effect as of the date hereof. The advancement, indemnification and liability limitation or exculpation provisions of the CPUH Parties’ Governing Documents or in other applicable agreements in effect as of immediately prior to the CPUH Merger Effective Time shall not, during such six (6)-year period, be amended, repealed or otherwise modified after the CPUH Merger Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the CPUH Merger Effective Time or at any time prior to such time, were directors or officers of any CPUH Party (the “CPUH D&O Persons”) to receive advancement, be so indemnified, have their liability limited or be exculpated with respect to any act, error or omission occurring on or prior to the CPUH Merger Effective Time by reason of the fact that such CPUH D&O Person was a director or officer of any CPUH Party prior to the CPUH Merger Effective Time, unless such amendment, repeal or other modification is required by applicable Law.

 

(b) The Surviving Corporation shall not have any obligation under this Section 5.15 to any CPUH D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such CPUH D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

(c) Pubco or CPUH shall purchase, at the expense of CPUH (subject to Section 8.6), at or prior to the CPUH Merger Closing and maintain in effect for a period of six (6) years after the CPUH Merger Effective Time, without lapses in coverage, a “tail” policy or policies providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the CPUH Parties as of the date of this Agreement with respect to any acts, errors or omissions occurring on or prior to the CPUH Merger Effective Time (the “CPUH D&O Tail Policy”). Such “tail” policy or policies shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under CPUH’s directors’ and officers’ liability insurance policies as of the date of this Agreement; provided that Pubco and CPUH shall not be required to pay a premium for such “tail” policy or policies in excess of the amount set forth on Section 5.15(c) of the CPUH Disclosure Schedules (the “CPUH Maximum Amount”), and if such insurance is not available or exceeds the CPUH Maximum Amount, then CPUH shall purchase the maximum coverage available for a cost not exceeding the CPUH Maximum Amount.

 

(d) If, following the CPUH Merger Effective Time, the Surviving Corporation (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 5.15.

 

(e) The CPUH D&O Persons entitled to the advancement, indemnification, liability limitation, exculpation and insurance set forth in this Section 5.15 are intended to be third-party beneficiaries of this Section 5.15. This Section 5.15 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of CPUH.

 

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Section 5.16 Company Indemnification; Directors’ and Officers’ Insurance.

 

(a) Each Party agrees that (i) all rights to advancement, indemnification, limitations on liability or exculpation now existing in favor of the directors and officers of the Company and its Subsidiaries, as provided in the Company’s and its Subsidiaries’ Governing Documents in effect as of immediately prior to the Intermediate Merger Effective Time, in either case, solely with respect to any acts, errors or omissions occurring on or prior to the Intermediate Merger Effective Time, shall survive the transactions contemplated by this Agreement and shall continue in full force and effect from and after the Intermediate Merger Effective Time for a period of six (6) years, and (ii) the Surviving Corporation will perform and discharge, or cause to be performed and discharged, all obligations to provide such advancement, indemnity, limitations on liability and exculpation during such six (6)-year period. During such six (6)-year period, the Surviving Corporation shall advance, or caused to be advanced, expenses in connection with such indemnification as provided in the Company’s and its Subsidiaries’ Governing Documents or other applicable agreements in effect as of the date hereof. The advancement, indemnification and liability limitation or exculpation provisions of the Company’s and its Subsidiaries’ Governing Documents or in other applicable agreements in effect as of immediately prior to the Intermediate Merger Effective Time shall not, during such six (6)-year period, be amended, repealed or otherwise modified after the Intermediate Merger Effective Time in any manner that would materially and adversely affect the rights thereunder of individuals who, as of immediately prior to the Intermediate Merger Effective Time or at any time prior to such time, were directors or officers of the Company or any of its Subsidiaries (the “Company D&O Persons”) to receive advancement, be so indemnified, have their liability limited or be exculpated with respect to any act, error or omission occurring on or prior to the Intermediate Merger Effective Time by reason of the fact that such Company D&O Person was a director or officer of the Company prior to the Intermediate Merger Effective Time, unless such amendment, repeal or other modification is required by applicable Law.

 

(b) None of the Surviving Corporation, the Company or any of its Subsidiaries shall have any obligation under this Section 5.16 to any Company D&O Person when and if a court of competent jurisdiction shall ultimately determine (and such determination shall have become final and non-appealable) that the indemnification of such Company D&O Person in the manner contemplated hereby is prohibited by applicable Law.

 

(c) The Company shall purchase, at or prior to the Intermediate Merger Effective Time, and the Surviving Corporation shall maintain, or cause to be maintained, in effect for a period of six (6) years after the Intermediate Merger Effective Time, without lapses in coverage, a “tail” policy or policies providing directors’ and officers’ liability insurance coverage for the benefit of those Persons who are currently covered by any comparable insurance policies of the Company or its Subsidiaries immediately prior to the Intermediate Merger Effective Time with respect to any acts, errors or omissions occurring on or prior to the Intermediate Merger Effective Time (the “Company D&O Tail Policy”). Such Company D&O Tail Policy shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under the Company’s or its Subsidiaries’ directors’ and officers’ liability insurance policies in effect immediately prior to the Intermediate Merger Effective Time; provided that the Company shall not be required to pay an aggregate premium for such “tail” policy or policies in excess of three hundred percent (300%) of the most recent aggregate annual premium paid by the Company prior to the date of this Agreement (the “Company Maximum Amount”), and if such insurance is not available or exceeds the Company Maximum Amount, then the Company shall purchase the maximum coverage available for a cost not exceeding the Company Maximum Amount. Notwithstanding the foregoing in this Section 5.16(c), the Company in its sole discretion, in lieu of purchasing the Company D&O Tail Policy, may choose to maintain (and if so chosen, the Surviving Corporation shall maintain or cause to be maintained) for a period of six (6) years after the Intermediate Merger Effective Time, without any lapses in coverage, directors’ and officers’ liability insurance for the benefit of those Persons who are currently covered by any comparable insurance policies of the Company and its Subsidiaries immediately prior to the Intermediate Merger Effective Time with respect to any acts, errors or omissions occurring on or prior to the Intermediate Merger Effective Time. Such insurance policies shall provide coverage on terms (with respect to coverage and amount) that are substantially the same as (and no less favorable in the aggregate to the insured than) the coverage provided under the Company’s or its Subsidiaries’ directors’ and officers’ liability insurance policies immediately prior to the Intermediate Merger Effective Time.

 

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(d) If, following the Intermediate Merger Effective Time, the Surviving Corporation (i) shall merge or consolidate with or merge into any other corporation or entity and shall not be the surviving or continuing corporation or entity of such consolidation or merger, or (ii) shall transfer all or substantially all of its properties and assets as an entity in one or a series of related transactions to any Person, then in each such case, proper provisions shall be made so that the successors or assigns of the Surviving Corporation shall assume all of the obligations set forth in this Section 5.16.

 

(e) The Company D&O Persons entitled to the advancement, indemnification, liability limitation, exculpation and insurance set forth in this Section 5.16 are intended to be third-party beneficiaries of this Section 5.16. This Section 5.16 shall survive the consummation of the transactions contemplated by this Agreement and shall be binding on all successors and assigns of Pubco.

 

Section 5.17 Post-Closing Directors and Officers.

 

(a) Subject to the terms of their respective Governing Documents, each of the Company and Pubco shall take all such action within its power as may be necessary or appropriate such that immediately following the CPUH Merger Effective Time, the Pubco Board shall consist of seven (7) directors, a majority of whom shall be “independent” directors for purposes of NYSE rules (each, an “Independent Director”), to initially consist of:

 

(i) One (1) director to be nominated by Shantanu Gaur;

 

(ii) One (1) director to be nominated by Remus Capital;

 

(iii) One (1) director to be nominated by the Sponsor;

 

(iv) One (1) Independent Director to be nominated by Shantanu Gaur;

 

(v) One (1) Independent Director to be nominated by Remus Capital; and

 

(vi) Two (2) Independent Directors to be nominated by the Company, one of which to be designated by RTW in accordance with the RTW Side Letter;

 

in each case, who shall serve in such capacity in accordance with the terms of the Pubco Governing Documents and the Investor Rights Agreement following the CPUH Merger Effective Time, provided, that, the Company shall deliver or cause to be delivered by written notice to CPUH, as soon as reasonably practicable after the date hereof (but in any event prior to the effectiveness of the Registration Statement/Proxy Statement), the names of each director to be nominated pursuant to clauses (i), (ii), (iv), (v) and (vi) of this Section 5.17(a). Immediately following the CPUH Merger Effective Time, the non-executive co-chairman and lead independent director of the Pubco Board shall be as set forth on Section 5.17(a) of the Company Disclosure Schedules.

 

(b) The directors shall be divided into three classes, designated Class I, Class II and Class III, the composition of which shall be determined by the Company following the date of this Agreement. The members of the compensation committee, audit committee and nominating committee of the Pubco Board are the Persons determined in accordance with Section 5.17(c). The officers of Pubco (the “Officers”) are the Persons determined in accordance with Section 5.17(d).

 

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(c) As soon as reasonably practicable after the date hereof (but in any event prior to the effectiveness of the Registration Statement/Proxy Statement), the Company shall, subject to applicable listing rules of NYSE and applicable Law, designate the members of the Pubco Board, as constituted immediately after the CPUH Merger Effective Time, who shall be the members of the compensation committee, audit committee and nominating committee of the Pubco Board immediately after the CPUH Merger Effective Time.

 

(d) The Persons identified on Section 5.17(d) of the Company Disclosure Schedules shall be the Officers immediately after the CPUH Merger Effective Time, with each such individual holding the title set forth opposite his or her name. In the event that any Person identified on Section 5.17(d) of the Company Disclosure Schedules is unwilling or unable (whether due to death, disability or otherwise) to serve as an Officer, then, no later than 20 days prior to the effectiveness of the Registration Statement/Proxy Statement, the Company may, subject to applicable listing rules of NYSE and applicable Law, replace such individual with another individual to serve as such Officer by amending Section 5.17(d) of the Company Disclosure Schedules to include such replacement individual as such Officer.

 

Section 5.18 PIPE Subscriptions. Unless otherwise approved in writing by the Company, CPUH and Pubco shall not (other than changes that are solely ministerial and other de minimis changes) permit any amendment or modification to be made to, permit any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any of the Subscription Agreements, in each case, other than any assignment or transfer expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision). Subject to the immediately preceding sentence and in the event that all conditions in the Subscription Agreements have been satisfied, CPUH and Pubco shall use its reasonable best efforts to take, or to cause to be taken, all actions required, necessary or that it otherwise deems to be proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms described therein. Without limiting the generality of the foregoing, CPUH and Pubco shall give the Company prompt written notice (a) of any requested amendment to any Subscription Agreement, (b) of any breach or default, to the knowledge of CPUH, by any party to any Subscription Agreement, (c) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, or to the knowledge of CPUH, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement, and (d) if Pubco does not expect to receive all or any portion of the applicable purchase price under any Investor’s Subscription Agreement in accordance with its terms. Notwithstanding any other provision of this Agreement, each of CPUH and Pubco agree, for the benefit of the Company, to take all necessary, legally available steps to enforce against any Investor the terms of that Investor’s Subscription Agreement if the Investor is in material breach of its obligations thereunder, including any material breach caused by the Investor’s failure to fund its Subscription Amount (as defined in its Subscription Agreement) at the time and in the amount required pursuant to its Subscription Agreement (the “Subscription Agreement Enforcement”); provided, however, that CPUH will only be obligated to take an action in connection with the Subscription Agreement Enforcement to the extent that, prior to the taking of such action by CPUH, the Company has advanced to CPUH any and all fees, expenses, commissions or other amounts required to be paid or incurred in connection with such action (the “Subscription Agreement Enforcement Expenses”).

 

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Section 5.19 Pubco Governing Documents, New ESPP and New Equity Incentive Plan.

 

(a) Promptly following the mutual agreement between CPUH, Pubco and the Company of the forms thereof and, in any event, prior to the initial filing of the Registration Statement/Proxy Statement with the SEC, the Pubco Board shall approve, and shall recommend that the Company, as the sole stockholder of Pubco, approve, (i)(A) the Amended and Restated Certificate of Incorporation of the Surviving Corporation and (B) the Amended and Restated Bylaws of the Surviving Corporation, which shall include, among other things, a provision pursuant to which certain Company Stockholders who hold Pubco Common Stock shall not effect any sale or distribution of any shares of Pubco Common Stock held by him, her or it during the lock-up period described therein (the documents described in the preceding clauses (A) and (B), the “Pubco Governing Documents”), in each case, in the forms mutually agreed upon by CPUH, Pubco and the Company, (ii) the New ESPP and (iii) the New Equity Incentive Plan.

 

(b) Promptly following the mutual agreement between CPUH, Pubco and the Company of the forms thereof and, in any event, prior to the initial filing of the Registration Statement/Proxy Statement with the SEC, the Company, as the sole stockholder of Pubco, shall approve (i) the Pubco Governing Documents, (ii) the New ESPP and (iii) the New Equity Incentive Plan, in each case, in the forms mutually agreed upon by CPUH, Pubco and the Company.

 

Section 5.20 Expense Statement. At least five (5) Business Days prior to the contemplated Closing Date, CPUH and the Company shall each deliver to the other a written statement setting forth a complete and accurate schedule of its good faith estimate of, in respect of CPUH, each Unpaid CPUH Expense, and in respect of the Company, each Unpaid Company Expense, as of the Closing Date.

 

Section 5.21 Transaction Litigation. During the Interim Period, CPUH, on the one hand, and the Company, on the other hand, shall each notify the other promptly after learning of any stockholder demand (or threat thereof) or other stockholder Proceeding, investigation, examination or inquiry, whether or not before any Governmental Entity (including derivative claims), relating to this Agreement, or any of the transactions contemplated hereby (collectively, “Transaction Litigation”) commenced or, to the knowledge of CPUH or to the knowledge of the Company, as applicable, threatened in writing against (a) in the case of CPUH, CPUH, any of CPUH’s Affiliates or any of their respective Representatives or stockholders (in their capacity as such), or (b) in the case of the Company, the Company, any of the Company’s Affiliates or any of their respective Representatives or stockholders (in their capacity as such). CPUH and the Company shall each (i) keep the other reasonably informed regarding any Transaction Litigation, (ii) give the other the opportunity to, at its own cost and expense, participate in the defense, settlement and compromise of any such Transaction Litigation and reasonably cooperate with the other in connection with the defense, settlement and compromise of any such Transaction Litigation, (iii) consider in good faith the other’s advice with respect to any such Transaction Litigation, and (iv) reasonably cooperate with each other with respect to any Transaction Litigation; provided, however, that in no event shall (x) the Company, any of the Company’s Affiliates or any of their respective Representatives settle or compromise any Transaction Litigation without the prior written consent of CPUH (such consent not to be unreasonably withheld, conditioned or delayed) or (y) CPUH, any of CPUH’s Affiliates or any of their respective Representatives settle or compromise any Transaction Litigation without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).

 

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Section 5.22 Employee Stock Purchase Plan. The Company shall, with the assistance of a compensation consultant selected by the Company (with all fees and expenses of such consultant to be borne solely by the Company (the “New ESPP Fees”)), provide a proposed form of employee stock purchase plan within 30 days after the date of this Agreement (the “New ESPP”). CPUH shall have a right to review and approve the New ESPP in advance, such approval not to be unreasonably withheld, conditioned or delayed, and the Parties shall otherwise cooperate provide that the New ESPP include such terms and conditions as are customary and appropriate for the New ESPP. Prior to the Intermediate Merger Effective Time, Pubco shall approve and adopt the New ESPP. Within two (2) Business Days following the expiration of the sixty (60) day period following the date the Surviving Corporation has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, the Surviving Corporation shall use its reasonable best efforts to file an effective registration statement on Form S-8 (or other applicable form, including Form S-3) with respect to the Pubco Common Stock issuable under the New Equity Incentive Plan and/or the New ESPP, and the Surviving Corporation shall use reasonable best efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the New Equity Incentive Plan or acquired under the New ESPP remain outstanding. Notwithstanding the above, and despite the approval of the New ESPP by Pubco, the parties acknowledge and agree that the implementation of the New ESPP, and any grants thereunder, are subject to review and adoption by the Pubco Board after the Closings.

 

Section 5.23 Section 16 Matters. Prior to the CPUH Merger Closing, the Parties and their respective boards of directors, or appropriate committees of “non-employee directors” (as defined in Rule 16b-3 of the Exchange Act) thereof, as applicable, shall adopt resolutions consistent with the interpretive guidance of the SEC so that the acquisition of Pubco Common Stock pursuant to this Agreement and the Ancillary Agreements by any person owning securities of the Company who is expected to become a director or officer (as defined under Rule 16a-1(f) under the Exchange Act) of the Surviving Corporation following the Closings shall be an exempt transaction for purposes of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.

 

Section 5.24 Company Support Agreements. During the Interim Period and subject to applicable law, the Company will use reasonable best efforts to obtain joinders to the Company Support Agreement (in the form attached to the Company Support Agreement) from Company Stockholders who, together with the Initial Company Support Stockholders, represent the requisite number of Company Shares to obtain the Company Stockholder Approval and the Related Party Termination Approval.

 

Section 5.25 CPUH Warrantholder Approval. Subject to the following sentence, as promptly as reasonably practicable following the date of this Agreement, CPUH, Pubco and the Company shall, in accordance with the terms and pursuant the documentation and timing to be mutually agreed upon (such agreement not to be unreasonably withheld, conditioned or delayed by any of the Parties), solicit the Requisite CPUH Warrantholder Approval and exercise reasonable best efforts to obtain the Requisite CPUH Warrantholder Approval. None of the Company, Pubco or CPUH shall incur any out of pocket fees, expenses, commissions or other amounts in connection with obtaining the Requisite CPUH Warrantholder Approval without the prior written consent of the other parties hereto (any such consent not to be unreasonably withheld, conditioned or delayed) (the “Warrantholder Solicitation Expenses”).

 

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Section 5.26 Incremental Financing. From and after the date of this Agreement, the Company shall, in compliance with applicable Laws, including applicable Securities Laws, use reasonable best efforts to obtain gross cash proceeds of at least $15,000,000 of additional financing pursuant to one or more private sales by the Company of Company Common Stock or any other Equity Securities of the Company which shall, in accordance with their terms and without any action or consent of any holder thereof or any other Person, automatically convert into shares of Company Common Stock immediately prior to the Intermediate Merger Effective Time (such other equity securities, collectively, “Incremental Convertible Equity Securities” and such financing, collectively, the “Incremental Financing” ), by no later than April 30, 2023 (the “Incremental Financing Outside Date” ).

 

Article 6
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT

 

Section 6.1 Conditions to the Obligations of the Parties. The obligations of the Parties to consummate, or cause to be consummated, the transactions contemplated by this Agreement (including the Closings) are subject to the satisfaction or, if permitted by applicable Law, waiver by the Party for whose benefit such condition exists, of the following conditions at or prior to the Intermediate Merger Effective Time:

 

(a) the applicable waiting period (and any extensions thereof, or any timing agreements, understandings or commitments obtained by request or other action of the United States Federal Trade Commission or the Antitrust Division of the United States Department of Justice, as applicable) under the HSR Act shall have expired, been terminated or obtained (or deemed, by applicable Law, to have been obtained), as applicable;

 

(b) no Order or Law issued by any court of competent jurisdiction or other Governmental Entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Agreement (including the Closings) shall be in effect;

 

(c) the Registration Statement/Proxy Statement shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC and shall remain in effect with respect to the Registration Statement/Proxy Statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC and remain pending;

 

(d) the Company Stockholder Written Consent shall have been obtained;

 

(e) the CPUH Stockholder Approval shall have been obtained;

 

(f) the Pubco Common Stock to be issued hereunder shall have been approved for listing on NYSE, subject only to official notice of issuance thereof, Pubco shall be able to satisfy any applicable initial and continuing listing requirements, as applicable, of NYSE immediately following the CPUH Merger Effective Time, and CPUH and Pubco shall not have received any notice of non-compliance therewith that has not been cured or would not be cured at or immediately following the CPUH Merger Effective Time;

 

(g) after giving effect to the transactions contemplated hereby (including the CPUH Stockholder Redemption and the PIPE Financing), CPUH shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) as of immediately prior to the CPUH Merger Effective Time;

 

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(h) there being at least $70,000,000 in Net Closing Cash (the “Net Closing Cash Condition”); provided that (A) in the event that (1) Unpaid Company Expenses as of the Intermediate Merger Closing exceed the amount set forth on the Expense Allocation Schedule and (2) Unpaid CPUH Expenses as of the Intermediate Merger Closing do not exceed the amount set forth on Expense Allocation Schedule, then the Net Closing Cash Condition shall solely be a condition to the obligations of the CPUH Parties (and, for the avoidance of doubt, shall not be a condition to the obligations of the Company or Pubco) to consummate, or cause to be consummated, the transactions contemplated by this Agreement (including the Closings) and (B) in the event that (1) Unpaid CPUH Expenses as of the Intermediate Merger Closing exceed the amount set forth on the Expense Allocation Schedule and (2) Unpaid Company Expenses as of the Intermediate Merger Closing do not exceed the amount set forth the Expense Allocation Schedule, then the Net Closing Cash Condition shall solely be a condition to the obligations of the Company and Pubco (and, for the avoidance of doubt, shall not be a condition to the obligations of any CPUH Party) to consummate, or cause to be consummated, the transactions contemplated by this Agreement (including the Closings);

 

(i) the Revenue Interest Financing shall have been consummated by the Company and RTW; and

 

(j) the Fortress Financing shall have been consummated by the Company and Fortress.

 

Section 6.2 Other Conditions to the Obligations of the CPUH Parties. The obligations of the CPUH Parties to consummate, or cause to be consummated, the transactions contemplated by this Agreement (including the Closings) are subject to the satisfaction or, if permitted by applicable Law, waiver by CPUH (on behalf of itself and the Merger Subs), of the following further conditions at or prior to the Intermediate Merger Effective Time:

 

(a) (i) the Company and Pubco Fundamental Representations (other than the representations and warranties set forth in Section 3.2(a)) shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all material respects as of such earlier date), (ii) the representations and warranties set forth in Section 3.2(a) shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), and (iii) the representations and warranties set forth in Article 3 of this Agreement (other than the Company and Pubco Fundamental Representations and the representations and warranties set forth in Section 3.2(a)) shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) as of such earlier date), except, in the case of this clause (iii), where the failure of such representations and warranties to be true and correct, taken as a whole, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;

 

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(b) the Company and Pubco shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the Company and Pubco under this Agreement at or prior to the Intermediate Merger Closing;

 

(c) since the date of this Agreement, no Company Material Adverse Effect has occurred and is continuing;

 

(d) the approval of the sole stockholder of Pubco, as contemplated in Section 5.9 and 5.19, shall have been obtained;

 

(e) at or prior to the Intermediate Merger Closing, the Company shall have delivered, or caused to be delivered, to CPUH a certificate duly executed by an authorized officer of each of the Company and Pubco, dated as of the Closing Date, to the effect that the conditions specified in Section 6.2(a), 6.2(b) and 6.2(c) are satisfied, in a form and substance reasonably satisfactory to CPUH; and

 

(f) a pay-off letter in form and substance reasonably satisfactory to CPUH in connection with the repayment and termination of all Indebtedness under the Runway Loan Documents and Lien release documents with respect to all Liens in respect of such Indebtedness.

 

Section 6.3 Other Conditions to the Obligations of the Company. The obligations of the Company to consummate, or cause to be consummated, the transactions contemplated by this Agreement (including the Closings) are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company (on behalf of itself and Pubco), of the following further conditions at or prior to the Intermediate Merger Effective Time:

 

(a) (i) the CPUH Fundamental Representations (other than the representations and warranties set forth in Section 4.6(a)) shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “CPUH Material Adverse Effect” or any similar limitation set forth therein) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (without giving effect to any limitation as to “materiality” or “CPUH Material Adverse Effect” or any similar limitation set forth therein) as of such earlier date), (ii) the representations and warranties set forth in Section 4.6(a) shall be true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date), and (iii) all other representations and warranties of the CPUH Parties set forth in Article 4 of this Agreement (other than the CPUH Fundamental Representations) shall be true and correct (without giving effect to any limitation as to “materiality” or “CPUH Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (without giving effect to any limitation as to “materiality” or “CPUH Material Adverse Effect” or any similar limitation set forth therein) as of such earlier date), except, in the case of this clause (iii), where the failure of such representations and warranties to be true and correct, has not had, and would not reasonably be expected to have, individually or in the aggregate, a CPUH Material Adverse Effect;

 

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(b) the CPUH Parties shall have performed and complied in all material respects with the covenants and agreements required to be performed or complied with by the CPUH Parties under this Agreement at or prior to the Intermediate Merger Closing;

 

(c) since the date of this Agreement, no CPUH Material Adverse Effect has occurred and is continuing;

 

(d) the approval of the sole stockholder of Merger Sub I and the approval of the sole member of Merger Sub II, each as contemplated in Section 5.9, shall each have been obtained; and

 

(e) at or prior to the Intermediate Merger Closing, CPUH shall have delivered, or caused to be delivered, to the Company a certificate duly executed by an authorized officer of CPUH, dated as of the Closing Date, to the effect that the conditions specified in Section 6.3(a), Section 6.3(b) and Section 6.3(c) are satisfied, in a form and substance reasonably satisfactory to the Company.

 

Article 7
TERMINATION

 

Section 7.1 Termination. This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the CPUH Merger Closing:

 

(a) by mutual written consent of CPUH and the Company;

 

(b) by CPUH, if any of the representations or warranties set forth in Article 3 of this Agreement shall not be true and correct, or if the Company or Pubco has failed to perform any covenant or agreement on the part of the Company or Pubco set forth in this Agreement (including an obligation to consummate the Closings), such that the condition to Closings set forth in either Section 6.2(a) or 6.2(b) will not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to the Company by CPUH, and (ii) the Termination Date; provided, however, that none of the CPUH Parties is then in breach of this Agreement so as to prevent the condition to Closings set forth in either Section 6.3(a) or 6.3(b) from being satisfied;

 

(c) by the Company, if any of the representations or warranties set forth in Article 4 of this Agreement shall not be true and correct, or if any CPUH Party has failed to perform any covenant or agreement on the part of such applicable CPUH Party set forth in this Agreement (including an obligation to consummate the Closings), such that the condition to Closings set forth in either Section 6.3(a) or 6.3(b) will not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof is delivered to CPUH by the Company, and (ii) the Termination Date; provided, however, that the Company and Pubco are not then in breach of this Agreement so as to prevent the condition to Closings set forth in Section 6.2(a) or 6.2(b) from being satisfied;

 

(d) by either CPUH or the Company, if the transactions contemplated by this Agreement (including the Closings) shall not have been consummated on or prior to August 7, 2023 (the “Termination Date”); provided, that (i) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to CPUH if any CPUH Party’s breach of any of its covenants or obligations under this Agreement shall have caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date, and (ii) the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to the Company if the Company’s or Pubco’s breach of its covenants or obligations under this Agreement shall have caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date;

 

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(e) by either CPUH or the Company, if any Governmental Entity shall have enacted, issued, enforced or entered an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such Order or other action shall have become final and nonappealable;

 

(f) by either CPUH or the Company, if the CPUH Stockholders Meeting has been held (including any adjournment or postponement thereof), has concluded, CPUH’s stockholders have duly voted and the CPUH Stockholder Approval was not obtained;

 

(g) by CPUH, if the Company does not deliver or cause to be delivered to CPUH the Company Stockholder Written Consent in accordance with Section 5.14 on or prior to the Company Stockholder Written Consent Deadline;

 

(h) by CPUH, if the Company does not deliver or cause to be delivered, on or prior to the date that is thirty (30) days from the date hereof, to CPUH joinders to the Company Support Agreement in accordance with Section 5.24 from Company Stockholders (together with the Initial Company Support Stockholders) that represent the requisite number of Company Shares to obtain the Company Stockholder Approval and the Related Party Termination Approval; or

 

(i) by either CPUH or the Company, in the event that the Company has not consummated the transactions contemplated by the Incremental Financing on or prior to the Incremental Financing Outside Date.

 

Section 7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, this entire Agreement shall forthwith become void (and there shall be no Liability or obligation on the part of the Parties and their respective Representatives) with the exception of (a) Section 5.3(a), this Section 7.2, Article 8 and Article 1 (to the extent related to the foregoing), each of which shall survive such termination and remain valid and binding obligations of the Parties, and (b) the Confidentiality Agreement, which shall survive such termination and remain valid and binding obligations of the parties thereto in accordance with its terms. Notwithstanding the foregoing, the termination of this Agreement pursuant to Section 7.1 shall not affect any Liability on the part of any Party for the Willful Breach of this Agreement by, or any Fraud of, such Party (in the case of the Company, the Company or Pubco, and, in the case of CPUH, CPUH or either Merger Sub).

 

Article 8
MISCELLANEOUS

 

Section 8.1 Non-Survival. The representations, warranties, agreements and covenants in this Agreement, or in any instrument, document or certificate delivered pursuant to this Agreement, shall terminate at the Final Merger Effective Time, except (a) for those covenants and agreements that, by their terms, contemplate performance after the Final Merger Effective Time, (b) for those representations and warranties set forth in Section 3.26, Section 3.30, 4.17 and 4.19 and (c) in the case of Fraud. This Section 8.1 shall expressly survive the Closings.

 

Section 8.2 Entire Agreement; Assignment. This Agreement (together with the Company Disclosure Schedules, the CPUH Disclosure Schedules, any Exhibits hereto, the Ancillary Documents and the Confidentiality Agreement) constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, undertakings, representations and other arrangements, both written and oral, among the Parties with respect to the subject matter hereof. This Agreement may not be assigned by any Party (whether by operation of law or otherwise) without the prior written consent of (a) prior to the Closings, CPUH and the Company, and (b) from and after the Closings, the Surviving Corporation and the Sponsor. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void.

 

Section 8.3 Amendment. This Agreement may be amended or modified only (a) prior to the Closings, by a written agreement executed and delivered by CPUH, each Merger Sub, Pubco and the Company, and (b) after the Closings, by a written agreement executed and delivered by Pubco and the Sponsor. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any Party or Parties effected in a manner which does not comply with this Section 8.3 shall be void, ab initio.

 

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Section 8.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) (i) by delivery in person, (ii) by e-mail (having obtained electronic delivery confirmation thereof, but excluding any automated reply, such as an out-of-office notification), (iii) by FedEx or other nationally recognized overnight delivery service or (iv) posting in the United States mail (having been sent registered or certified mail return receipt requested, postage prepaid) (upon receipt thereof) to the other Parties as follows:

 

(a) If to any CPUH Party, to:

 

  Compute Health Acquisition Corp.
  1100 North Market Street, 4th Floor
  Wilmington, DE 19890
  Attention: Joshua Fink
  Jean Nehmé
  Email: jfink@ophir-holdings.com
  nehmejean3@gmail.com

 

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

 

Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Attention: Howard L. Ellin
Richard Witzel
Email: Howard.Ellin@skadden.com
Richard.Witzel@skadden.com

 

(b) If to the Company or Pubco, to:

 

Allurion Technologies, Inc.
11 Huron Drive
Natick, MA 01760
Attention: Chris Geberth - Chief Financial Officer
Email: cgeberth@allurion.com

 

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

 

Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attention: Danielle M. Lauzon and Paul R. Rosie
E-mail: dlauzon@goodwinlaw.com, prosie@goodwinlaw.com

 

or to such other address as the Party to whom notice is given may have previously furnished to the others in writing in the manner set forth above. All such notices, requests, claims, demands and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day; otherwise, any such notice, request, claim, demand or other communication shall be deemed not to have been received until the next succeeding Business Day.

 

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Section 8.5 Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.

 

Section 8.6 Fees and Expenses. Except as otherwise set forth in this Agreement, all fees and expenses incurred in connection with this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including the fees and disbursements of counsel, financial advisors, accountants and other professional advisors and any other fees and expenses of counsel or other advisors incurred prior the Closings (collectively, the “Fees and Expenses”), shall be paid by the Party incurring such Fees and Expenses; provided that, in the event the Closings occur, any Fees and Expenses that are unpaid at the Final Merger Closing (including any Unpaid CPUH Expenses at the Final Merger Closing and any Unpaid Company Expenses at the Final Merger Closing) shall be paid by the Surviving Corporation from the funds available in the Trust Account or from proceeds of the PIPE Financing, Revenue Interest Financing or the Fortress Incremental Amount (or, if not so paid, by the Surviving Subsidiary Company), in each case, by wire transfer of immediately available funds to one or more accounts designated by the applicable payee(s); provided, further, that, notwithstanding anything in this Agreement to the contrary, in the event that this Agreement is terminated by either CPUH or the Company pursuant to Section 7.1(i), the Company shall, within two (2) Business Days of such termination, reimburse, by wire transfer of immediately available funds, CPUH for fifty percent (50%) of all Fees and Expenses (including all CPUH Extension Expenses) incurred by CPUH or any of its Affiliates after the date of this Agreement but prior to such termination by either CPUH or the Company pursuant to Section 7.1(i).

 

Section 8.7 Construction; Interpretation. The term “this Agreement” means this Business Combination Agreement together with the Schedules and Exhibits hereto, as the same may from time to time be amended, modified, supplemented or restated in accordance with the terms hereof. The headings set forth in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement. No Party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions hereof, and all provisions of this Agreement shall be construed according to their fair meaning and not strictly for or against any Party. Unless otherwise indicated to the contrary herein by the context or use thereof (a) the words, “herein,” “hereto,” “hereby,” “hereof” and words of similar import refer to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular section, subsection, paragraph, subparagraph or clause set forth in this Agreement, (b) masculine gender shall also include the feminine and neutral genders, and vice versa, (c) words importing the singular shall also include the plural, and vice versa, (d) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”, (e) references to “$” or “dollar” or “US$” shall be references to United States dollars, (f) the word “or” is disjunctive but not necessarily exclusive, (g) the words “writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form, (h) the word “day” means calendar day unless Business Day is expressly specified, (i) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”, (j) all references to Articles, Sections, Exhibits or Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement, (k) the words “provided” or “made available” or words of similar import (regardless of whether capitalized or not) shall mean, when used with reference to documents or other materials required to be provided or made available to any CPUH Party, any documents or other materials posted to the Venue electronic data room maintained by the Company as of 5:00 p.m., Eastern Time, at least one (1) day prior to the date of this Agreement and (l) all references to any Law will be to such Law as amended, supplemented, restated or otherwise modified or re-enacted from time to time. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter.

 

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Section 8.8 Exhibits and Schedules. All Exhibits and Schedules, or documents expressly incorporated into this Agreement, are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full in this Agreement. The Schedules shall be arranged in sections and subsections corresponding to the numbered and lettered Sections and subsections set forth in this Agreement. Any item disclosed in the Company Disclosure Schedules or in the CPUH Disclosure Schedules corresponding to any Section or subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the CPUH Disclosure Schedules) shall be deemed to have been disclosed with respect to every other Section and subsection of Article 3 (in the case of the Company Disclosure Schedules) or Article 4 (in the case of the CPUH Disclosure Schedules), as applicable, where the responsiveness of such disclosure to such other Section or subsection is reasonably apparent on the face of the disclosure. The information and disclosures set forth in the Schedules that correspond to the Sections or subsections of Article 3 or 4 may not be limited to matters required to be disclosed in the Schedules, and any such additional information or disclosure is for informational purposes only and does not necessarily include other matters of a similar nature.

 

Section 8.9 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns and, except as provided in Section 5.15, 5.16 and the last sentence of this Section 8.9, nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. The Sponsor shall be an express third-party beneficiary of Section 5.13, 8.2, 8.3, this Section 8.9, 8.13 and 8.14.

 

Section 8.10 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, then all other provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the Parties shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

Section 8.11 Counterparts; Electronic Signatures; Effectiveness. This Agreement and each Ancillary Document (including any of the closing deliverables contemplated hereby) may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Document (including any of the closing deliverables contemplated hereby) by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement or any such Ancillary Document or Closing deliverable.

 

Section 8.12 Knowledge of Company; Knowledge of CPUH. For all purposes of this Agreement, the phrase “to the Company’s knowledge” and “known by the Company” and any derivations thereof shall mean, as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12 of the Company Disclosure Schedules, as such individuals would have acquired in the exercise of a reasonable inquiry of direct reports. For all purposes of this Agreement, the phrase “to CPUH’s knowledge” and “to the knowledge of CPUH” and any derivations thereof shall mean, as of the applicable date, the actual knowledge of the individuals set forth on Section 8.12 of the CPUH Disclosure Schedules, as such individuals would have acquired in the exercise of a reasonable inquiry of direct reports.

 

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Section 8.13 No Recourse. Except  in the case of Fraud, this Agreement may only be enforced against, and any action for breach of this Agreement or related to the transactions contemplated hereby, may only be made against, the Parties (and then only with respect to the specific obligations of such Parties, as set forth herein), and none of the Representatives of any CPUH Party (including the Sponsor) or the Company and Pubco (and including the Parties’ stockholders) shall have any Liability arising out of or relating to this Agreement or the transactions contemplated hereby, including with respect to any claim (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any written or oral representations made or alleged to be made in connection herewith, as expressly provided herein. This Section 8.13 shall expressly survive the Closings.

 

Section 8.14 Extension; Waiver. The Company (prior to the Closings) or the Sponsor (after the Closings) may (a) extend the time for the performance of any of the obligations or other acts of the CPUH Parties set forth herein, (b) waive any inaccuracies in the representations and warranties of the CPUH Parties set forth herein or (c) waive compliance by the CPUH Parties with any of the agreements or conditions set forth herein. CPUH may (i) extend the time for the performance of any of the obligations or other acts of the Company set forth herein, (ii) waive any inaccuracies in the representations and warranties of the Company set forth herein or (iii) waive compliance by the Company with any of the agreements or conditions set forth herein. Any agreement on the part of any such Party to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such Party. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights, powers or privileges hereunder shall not constitute a waiver of such rights, powers or privileges, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

Section 8.15 Waiver of Jury Trial. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY PROCEEDING (I) ARISING UNDER THIS AGREEMENT OR UNDER ANY ANCILLARY DOCUMENT, OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES IN RESPECT OF THIS AGREEMENT OR ANY ANCILLARY DOCUMENT OR ANY OF THE TRANSACTIONS RELATED HERETO OR THERETO OR ANY FINANCING IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES EACH HEREBY AGREE AND CONSENT THAT ANY SUCH PROCEEDING SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15.

 

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Section 8.16 Submission to Jurisdiction. Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the District of Delaware and the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware) for the purposes of any Proceeding arising under or related to this Agreement, any Ancillary Document or any of the transactions contemplated hereby or thereby, and irrevocably and unconditionally waives any objection to the laying of venue of any such Proceeding in any such court, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding has been brought in an inconvenient forum. Each Party hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding arising under or related to this Agreement, any Ancillary Document or any of the transactions contemplated hereby or thereby, (A) any claim that it is not personally subject to the jurisdiction of the courts as described in this Section 8.16 for any reason, (B) that it or its property is exempt or immune from the jurisdiction of any such court or from any Proceeding commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Proceeding in any such court is brought in an inconvenient forum, (y) the venue of such Proceeding is improper or (z) this Agreement, or any Ancillary Document, or the subject matter hereof or thereof, may not be enforced in or by such courts. Each Party agrees that service of any process, summons, notice or document by registered mail to such Party’s respective address set forth in Section 8.4 shall be effective service of process for any such Proceeding.

 

Section 8.17 Remedies. Except as otherwise expressly provided herein, any and all remedies provided herein will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages, and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (a) the other Parties have an adequate remedy at law, or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity.

 

Section 8.18 Trust Account Waiver. Reference is made to the final prospectus of CPUH, filed with the SEC (File No. 333-252245) on February 8, 2021 (the “Prospectus”). The Company and Pubco acknowledge, agree and understand that CPUH has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of CPUH’s public stockholders and certain other parties (including the underwriters of the IPO), and CPUH may disburse monies from the Trust Account only in the express circumstances described in the Prospectus. For and in consideration of CPUH entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Company and Pubco hereby agrees on behalf of itself and its Representatives and Affiliates that, notwithstanding anything to the contrary in this Agreement, none of the Company or Pubco nor any of its Representatives or Affiliates does now nor shall at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account or distributions therefrom, and shall not make or bring any action, suit, claim or other proceeding against the Trust Account (including in respect of any distributions therefrom), regardless of whether such action, suit, claim or other proceeding arises as a result of, in connection with or relates in any way to, this Agreement, the transactions contemplated hereby or any proposed or actual business relationship between CPUH or any of its Representatives of Affiliates, on the one hand, and the Company, Pubco or any of its Representatives or Affiliates, on the other hand, or any other matter, and regardless of whether such action, suit, claim or other proceeding arises based on contract, tort, equity or any other theory of legal liability (any and all such actions, suits, claims or other proceedings are collectively referred to hereafter as the “Trust Account Released Claims”). Each of the Company and Pubco, on its own behalf and on behalf of its Representatives and Affiliates, hereby irrevocably and unconditionally waives any Trust Account Released Claims that it or any of its Representatives or Affiliates may have against the Trust Account (including in respect of any distributions therefrom) now or in the future as a result of, or arising out of, any discussions, negotiations, agreements or Contracts with CPUH or its Representatives or Affiliates, and will not seek recourse against the Trust Account (including in respect of any distributions therefrom) for any reason whatsoever (including for an alleged breach of any agreement with CPUH or its Affiliates).

 

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Section 8.19 Legal Representation.

 

(a) CPUH hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates and each of their respective successors and assigns (including after the Closings, the Surviving Subsidiary Company) (all such parties, the “Goodwin Procter Waiving Parties”), that Goodwin Procter LLP (“Goodwin Procter”) may represent the stockholders or holders of other Equity Securities of the Company and Pubco or any of their respective directors, members, partners, officers, employees or Affiliates (other than CPUH or its Subsidiaries) (collectively, the “Goodwin Procter WP Group”), in each case, solely in connection with any Proceeding or obligation arising out of or relating to this Agreement, any Ancillary Document or the transactions contemplated hereby and thereby, notwithstanding its prior representation of the Company and its Subsidiaries or other Goodwin Procter Waiving Parties, and each of CPUH and the Company on behalf of itself and the Goodwin Procter Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Goodwin Procter’s prior representation of the Company, its Subsidiaries or of Goodwin Procter Waiving Parties. CPUH and the Company, for itself and the Goodwin Procter Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Company and its Subsidiaries or any member of the Goodwin Procter WP Group and Goodwin Procter, made prior to the Closings in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Ancillary Documents or the transactions contemplated hereby and thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Surviving Subsidiary Company notwithstanding the Mergers, and instead survive, remain with and are controlled by the Goodwin Procter WP Group (the “Goodwin Procter Privileged Communications”), without any waiver thereof. CPUH and the Company, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Goodwin Procter Privileged Communications, whether located in the records or email server of the Surviving Corporation and its Subsidiaries, in any Proceeding against or involving any of the parties after the Closings, and CPUH, the Company and Pubco agree not to assert that any privilege has been waived as to the Goodwin Procter Privileged Communications, by virtue of the Mergers.

 

(b) Each of CPUH, the Company and Pubco hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates and each of their respective successors and assigns (including after the Closings, the Surviving Subsidiary Company) (all such parties, the “Skadden Waiving Parties”), that Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”) may represent the stockholders or holders of other Equity Securities of the Sponsor or of CPUH or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Skadden WP Group”), in each case, solely in connection with any Proceeding or obligation arising out of or relating to this Agreement, any Ancillary Document or the transactions contemplated hereby and thereby, notwithstanding its prior representation of the Sponsor, CPUH and its Subsidiaries, or other Skadden Waiving Parties. Each of CPUH, the Company and Pubco, on behalf of itself and the Skadden Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising from or relating to Skadden’s prior representation of the Sponsor, CPUH and its Subsidiaries, or other Skadden Waiving Parties. Each of CPUH, the Company and Pubco, for itself and the Skadden Waiving Parties, hereby further irrevocably acknowledges and agrees that all privileged communications, written or oral, between the Sponsor, CPUH, or its Subsidiaries, or any other member of the Skadden WP Group, on the one hand, and Skadden, on the other hand, made prior to the Closings, in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any Ancillary Documents or the transactions contemplated hereby and thereby, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Surviving Subsidiary Company notwithstanding the Mergers, and instead survive, remain with and are controlled by the Skadden WP Group (the “Skadden Privileged Communications”), without any waiver thereof. CPUH, the Company and Pubco, together with any of their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Skadden Privileged Communications, whether located in the records or email server of CPUH and its Subsidiaries, in any Proceeding against or involving any of the parties after the Closings, and CPUH, the Company and Pubco agree not to assert that any privilege has been waived as to the Skadden Privileged Communications, by virtue of the Mergers.

 

* * * * *

 

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IN WITNESS WHEREOF, each of the Parties has caused this Business Combination Agreement to be duly executed on its behalf as of the day and year first above written.

 

  COMPUTE HEALTH ACQUISITION CORP.
   
  By: /s/ Jean Nehme
    Name: Jean Nehme
    Title: Co-Chief Executive Officer
   
  COMPUTE HEALTH CORP.
   
  By: /s/ Joshua Fink
    Name: Joshua Fink
    Title: Secretary and Treasurer
   
  COMPUTE HEALTH LLC
   
  By: /s/ Joshua Fink
    Name: Joshua Fink
    Title: Secretary and Treasurer

 

[Signature Page to Business Combination Agreement]

 

 

 

 

  ALLURION TECHNOLOGIES, INC.
   
  By: /s/ Shantanu Gaur
    Name:  Shantanu Gaur
    Title: Chief Executive Officer
   
  ALLURION TECHNOLOGIES HOLDINGS, INC.
   
  By: /s/ Shantanu Gaur
    Name: Shantanu Gaur
    Title: Chief Executive Officer

 

[Signature Page to Business Combination Agreement]

 

 

Exhibit 10.1

 

Exhibit B

 

SPONSOR SUPPORT AGREEMENT

 

This Sponsor Support Agreement (this “Sponsor Agreement”) is dated as of February 9, 2023, by and among Compute Health Sponsor LLC, a Delaware limited liability company (the “Sponsor”), Compute Health Acquisition Corp., a Delaware corporation (“Acquiror”), the Persons set forth on Schedule I attached hereto (the “Holders” and together with the Sponsor, the “CPUH Holders”), Allurion Technologies Holdings, Inc., a Delaware corporation and direct, wholly-owned subsidiary of the Company (as defined below) (“Pubco”), and Allurion Technologies, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).

 

RECITALS

 

WHEREAS, as of the date hereof, (a) the Sponsor is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of 21,442,500 shares of CPUH Common Stock and 12,833,333 CPUH Private Warrants, (b) the Holders are collectively the holders of 90,000 shares of Class B Common Stock and (c) Michael Harsh is the holder of 10,000 shares of Class A Common Stock and 2,500 CPUH Public Warrants;

 

 

WHEREAS, contemporaneously with the execution and delivery of this Sponsor Agreement, Acquiror, Compute Health Corp., a Delaware corporation and a direct, wholly-owned subsidiary of Acquiror (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company and a direct, wholly-owned subsidiary of Acquiror (“Merger Sub II” and, together with Merger Sub I, the “Merger Subs”), Pubco and the Company have entered into that certain Business Combination Agreement (as may be amended or modified from time to time, the “Business Combination Agreement”), dated as of the date hereof, pursuant to which, among other transactions, as part of the same overall transaction, (a) CPUH is to merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the publicly-listed company, (b) thereafter, Merger Sub I is to merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of Pubco (the “Intermediate Merger”) and (c) thereafter, the Company is to merge with and into Merger Sub II, with Merger Sub II surviving as a wholly-owned subsidiary of Pubco (collectively with the CPUH Merger and the Intermediate Merger, the “Mergers”), in each case on the terms and conditions set forth therein; and

 

WHEREAS, as an inducement to Acquiror and the Company to enter into the Business Combination Agreement and to consummate the transactions contemplated therein, the parties hereto desire to agree to certain matters as set forth herein.

 

 

 

 

AGREEMENT

 

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

 

ARTICLE I

 

SPONSOR SUPPORT AGREEMENT; COVENANTS

 

Section 1.1 Binding Effect of Business Combination Agreement. Each CPUH Holder hereby acknowledges that he, she or it has read the Business Combination Agreement and this Sponsor Agreement and has had the opportunity to consult with his, her or its tax and legal advisors. Each CPUH Holder shall be bound by and comply with Sections 5.6(c) (Exclusive Dealing) in respect of CPUH Acquisition Proposals and 5.4 (Public Announcements) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as if such CPUH Holder was an original signatory to the Business Combination Agreement with respect to such provisions.

 

Section 1.2 No Transfer. During the period commencing on the date hereof and ending on the earlier of (a) the CPUH Merger Effective Time and (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 7.1 thereof (the earlier of clauses (a) and (b), the “Expiration Time”), except, in each case, in connection with the transactions contemplated by this Sponsor Agreement (including Sections 1.6 and 1.7) and the Business Combination Agreement (including the CPUH Merger), each CPUH Holder shall not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase (or Lien on), deposit into a voting trust or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Registration Statement/Proxy Statement or Registration Statement (as defined in the Subscription Agreements)) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any shares of CPUH Common Stock, any CPUH Units, or any CPUH Warrants, owned by such CPUH Holder, (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 shares of CPUH Common Stock, any CPUH Units, or any CPUH Warrants, owned by such CPUH Holder (clauses (i) and (ii) collectively, a “Transfer”) or (iii) publicly announce any intention to effect any transaction specified in clauses (i) or (ii); provided, however, that the foregoing shall not prohibit Transfers between such CPUH Holder and any Affiliate of such CPUH Holder, so long as, prior to and as a condition to the effectiveness of any such Transfer, such Affiliate executes and delivers to Acquiror a joinder to this Sponsor Agreement in the form attached hereto as Annex A.

 

Section 1.3 New Shares. In the event that (a) any shares of CPUH Common Stock or any CPUH Warrants or other equity securities of Acquiror are issued to a CPUH Holder after the date of this Sponsor Agreement pursuant to any stock dividend, stock split or sub-division, recapitalization, reclassification, combination or exchange of shares of CPUH Common Stock or CPUH Warrants of, on or affecting the shares of CPUH Common Stock or the CPUH Warrants owned by such CPUH Holder or otherwise, (b) a CPUH Holder purchases or otherwise acquires beneficial ownership of any shares of CPUH Common Stock, any CPUH Warrants or any other equity securities of Acquiror after the date of this Sponsor Agreement, or (c) a CPUH Holder acquires the right to vote or share in the voting of any shares of CPUH Common Stock or other equity securities of Acquiror after the date of this Sponsor Agreement (such shares of CPUH Common Stock, such CPUH Warrants or such other equity securities of Acquiror, collectively, the “New Securities”), then such New Securities acquired or purchased by such CPUH Holder shall be subject to the terms of this Sponsor Agreement to the same extent as if they constituted the shares of CPUH Common Stock, CPUH Units, or the CPUH Warrants, owned by such CPUH Holder as of the date hereof.

 

B-2

 

 

Section 1.4 Closing Date Deliverables. On the Closing Date, the Sponsor, on behalf of itself, shall deliver to Pubco, Acquiror and the Company a duly-executed counterpart to that certain Investor Rights Agreement substantially in the form attached as Exhibit A to the Business Combination Agreement.

 

Section 1.5 Support Agreements.

 

(a) Hereafter until the Expiration Time, at any meeting of the stockholders of Acquiror, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of Acquiror is sought (in each case, to the extent entitled to vote on or provide consent with respect to such matter), each CPUH Holder shall (i) if a meeting is held, appear at such meeting (in person or by proxy) or otherwise cause all of its shares of CPUH Common Stock to be counted as present thereat for purposes of establishing a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) covering, all of such shares of CPUH Common Stock:

 

(i) in favor of each Required Transaction Proposal;

 

(ii) against any CPUH Acquisition Proposal or any proposal relating to a CPUH Acquisition Proposal (in each case, other than the Required Transaction Proposals);

 

(iii) against any merger agreement, merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Acquiror (other than the Business Combination Agreement and the transactions contemplated thereby, including the Mergers);

 

(iv)   against any change in the business, management or Board of Directors of Acquiror (other than in connection with the Required Transaction Proposals); and

 

(v) against any proposal, action or agreement that would (A) impede, frustrate, prevent or nullify any provision of this Sponsor Agreement, the Business Combination Agreement, any Ancillary Document or the Mergers, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of Acquiror or either Merger Sub under the Business Combination Agreement or any Ancillary Document, (C) result in any of the conditions set forth in Article 6 of the Business Combination Agreement not being fulfilled or (D) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, Acquiror (other than in connection with the CPUH Merger).

 

Each CPUH Holder hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing.

 

B-3

 

 

(b) The Sponsor shall comply with, and fully perform all of its obligations, covenants and agreements set forth in, that certain Letter Agreement, dated as of February 4, 2021, by and among the Sponsor, Acquiror and the other parties thereto (the “Voting Letter Agreement”), including without limitation the obligations of the Sponsor pursuant to Section 1 therein to not redeem any shares of CPUH Common Stock owned by the Sponsor in connection with the transactions contemplated by the Business Combination Agreement.

 

(c) From the date hereof until the Expiration Time, and unless expressly permitted pursuant to the terms of the Business Combination Agreement, the Sponsor shall not modify or amend any Contract between or among the Sponsor or any Affiliate of the Sponsor (other than Acquiror or any of its Subsidiaries), on the one hand, and Acquiror or any of Acquiror’s Subsidiaries, on the other hand.

 

Section 1.6 Founder Share Conversion.

 

(a) The Sponsor hereby agrees that, immediately prior to the consummation of the CPUH Merger (but subject to the prior satisfaction of all of the conditions to consummation of the Mergers set forth in Article 6 of the Business Combination Agreement), the Sponsor shall contribute, transfer, assign, convey and deliver to Acquiror, and Acquiror shall acquire and accept from the Sponsor, all of the Sponsor’s right, title, and interest in, to and under the Sponsor’s shares of Class B Common Stock and CPUH Warrants and, in exchange therefor, Acquiror shall issue to the Sponsor shares of Class A Common Stock, free and clear of all Liens as provided below (the “Founder Share Conversion”).

 

(b) In connection with the Founder Share Conversion, all 21,442,500 outstanding shares of Class B Common Stock and all 12,833,333 CPUH Warrants held by the Sponsor shall be exchanged and converted into 2,088,327 shares of Class A Common Stock.

 

(c) No certificates will be issued in connection with the Founder Share Conversion, and Acquiror will record the exchange of Sponsor’s Class B Common Stock and CPUH Warrants for the Class A Common Stock that the Sponsor is acquiring pursuant to the terms and conditions of this Section 1.6 on its books and records. Following the Founder Share Conversion and the transactions contemplated by the Business Combination Agreement, the Sponsor will not hold any shares of Class B Common Stock or any CPUH Warrants.

 

(d) The Founder Share Conversion shall be applicable only in connection with the transactions contemplated by the Business Combination Agreement and this Sponsor Agreement, and the Founder Share Conversion shall be void and of no force and effect in the event this Sponsor Agreement is terminated prior to the Closings.

 

(e) The parties hereto intend that the Founder Share Conversion will be treated as a tax-free recapitalization under Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended.

 

B-4

 

 

Section 1.7 Additional Class B Share Conversion.

 

(a) Hani Barhoush (“Barhoush”) hereby agrees that, immediately prior to the consummation of the CPUH Merger (but subject to the prior satisfaction of all of the conditions to consummation of the Mergers set forth in Article 6 of the Business Combination Agreement), Barhoush shall contribute, transfer, assign, convey and deliver to Acquiror, and Acquiror shall acquire and accept from Barhoush, all of Barhoush’s right, title and interest in, to and under Barhoush’s shares of Class B Common Stock and, in exchange therefor, Acquiror shall issue to Barhoush 21,120 shares of Class A Common Stock (the “Barhoush Share Conversion”).

 

(b) Michael Harsh (“Harsh”) hereby agrees that, immediately prior to the consummation of the CPUH Merger (but subject to the prior satisfaction of all of the conditions to consummation of the Mergers set forth in Article 6 of the Business Combination Agreement), Harsh shall contribute, transfer, assign, convey and deliver to Acquiror, and Acquiror shall acquire and accept from Harsh, all of Harsh’s right, title and interest in, to and under Harsh’s shares of Class B Common Stock and, in exchange therefor, Acquiror shall issue to Harsh 21,120 shares of Class A Common Stock (the “Harsh Share Conversion”).

 

(c) Gwendolyn A. Watanabe (“Watanabe” and, collectively with Barhoush and Harsh, the “Additional Class B Stockholders”) hereby agrees that, immediately prior to the consummation of the CPUH Merger (but subject to the prior satisfaction of all of the conditions to consummation of the Mergers set forth in Article 6 of the Business Combination Agreement), Watanabe shall contribute, transfer, assign, convey and deliver to Acquiror, and Acquiror shall acquire and accept from Harsh, all of Watanabe’s right, title and interest in, to and under Watanabe’s shares of Class B Common Stock and, in exchange therefor, Acquiror shall issue to Watanabe 21,120 shares of Class A Common Stock (the “Watanabe Share Conversion” and, collectively with the Barhoush Share Conversion and the Harsh Share Conversion, the “Additional Class B Share Conversion”)).

 

(d) No certificates will be issued in connection with the Additional Class B Share Conversion, and Acquiror will record the exchanges of the Class B Common Stock for the Class A Common Stock that the Additional Class B Stockholders are acquiring pursuant to the terms and conditions of this Section 1.7 on its books and records. Following the Additional Class B Share Conversion, the Founder Share Conversion and the transactions contemplated by the Business Combination Agreement, no shares of Class B Common Stock shall be outstanding.

 

(e) The Additional Class B Share Conversion shall be applicable only in connection with the transactions contemplated by the Business Combination Agreement and this Sponsor Agreement, and the Additional Class B Share Conversion shall be void and of no force and effect in the event this Sponsor Agreement is terminated prior to the Closings.

 

B-5

 

 

(f) The parties hereto intend that the Additional Class B Share Conversion will be treated as a tax-free recapitalization under Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended.

 

Section 1.8 Additional Agreements.

 

(a) Notwithstanding anything to the contrary in any other agreement or contract to which a CPUH Holder is bound, each CPUH Holder (for himself, herself or itself and for his, her or its successors, heirs and assigns) hereby (but subject to the consummation of the Mergers) irrevocably and unconditionally waives, to the fullest extent permitted by law and the CPUH Certificate of Incorporation, and agrees not to exercise, assert or perfect, any rights to adjustment or other anti-dilution protections with respect to the rate at which shares of Class B Common Stock held by such CPUH Holder convert into shares of Class A Common Stock in connection with the transactions contemplated by the Business Combination Agreement.

 

(b) Acquiror and the Sponsor hereby irrevocably and unconditionally agree that, if any amounts are outstanding under any Sponsor Loan extended to Acquiror or any Subsidiary of Acquiror by the Sponsor (or any of its Affiliates) as of the Closings, then, notwithstanding the terms of any promissory note or other document evidencing such Sponsor Loan or any other agreement or contract to which Acquiror or the Sponsor (or its applicable Affiliate) is bound, (i) $2,500,000 of such Sponsor Loans outstanding as of the Closing Date shall be paid at the Closings from the funds available in the Trust Account or from proceeds of the PIPE Financing or Revenue Interest Financing (or, if not so paid, by the Surviving Corporation), (ii) in the event the aggregate amount of Sponsor Loans outstanding as of the Closing Date is greater than $2,500,000 (such excess, the “Sponsor Loan Excess”), the Sponsor Loan Excess, up to an amount not to exceed $5,250,000 (the “Sponsor Loan Equity Conversion Cap”), outstanding as of the Closing Date shall be automatically converted into shares of Pubco Common Stock in accordance with Section 5.11 of the Business Combination Agreement and (iii) with respect to any Sponsor Loan Excess above the Sponsor Loan Equity Conversion Cap (such excess, the “Extinguishable Sponsor Loan Excess”), such Extinguishable Sponsor Loan Excess shall be fully extinguished and forgiven and Acquiror and Pubco shall have no obligation to pay such excess amounts; provided, that, notwithstanding anything in either of this Sponsor Agreement or the Business Combination Agreement to the contrary, the Company may, in its sole discretion, pursuant to an election by the Company made prior to the Closings, repay on the Closing Date some or all of the Sponsor Loan Excess, up to the Sponsor Loan Equity Conversion Cap, in cash.

 

Section 1.9 Further Assurances. Each CPUH Holder shall take, or cause to be taken, all such further actions and do, or cause to be done, all things reasonably necessary under applicable Laws to effect the actions required to consummate the Mergers and the other transactions contemplated by the Business Combination Agreement on the terms and subject to the conditions set forth therein.

 

Section 1.10 No Inconsistent Agreement. Each CPUH Holder hereby represents and covenants that such CPUH Holder has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of such CPUH Holder’s obligations hereunder.

 

B-6

 

 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES

 

Section 2.1 Representations and Warranties. Each CPUH Holder represents and warrants as of the date hereof to Acquiror and the Company as follows:

 

(a) Organization; Due Authorization. If such CPUH Holder is not an individual, it is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is formed, organized or constituted, and the execution, delivery and performance of this Sponsor Agreement and the consummation of the transactions contemplated hereby are within such CPUH Holder’s limited liability company powers and have been duly authorized by all necessary limited liability company actions on the part of such CPUH Holder. This Sponsor Agreement has been duly executed and delivered by such CPUH Holder and, assuming due authorization, execution and delivery by the other parties to this Sponsor Agreement, this Sponsor Agreement constitutes a legally valid and binding obligation of such CPUH Holder, enforceable against such CPUH Holder in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies). If this Sponsor Agreement is being executed in a representative or fiduciary capacity, the Person signing this Sponsor Agreement has full power and authority to enter into this Sponsor Agreement on behalf of the applicable CPUH Holder.

 

(b) Ownership. Such CPUH Holder is the record and beneficial owner (as defined in the Securities Act) of, and has good title to, all of such CPUH Holder’s shares of CPUH Common Stock, CPUH Units and CPUH Warrants, as applicable, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such shares of CPUH Common Stock, CPUH Units or CPUH Warrants (other than transfer restrictions under the Securities Act)) affecting any such shares of CPUH Common Stock, CPUH Units or CPUH Warrants, other than Liens pursuant to (i) this Sponsor Agreement, (ii) Acquiror’s Governing Documents, (iii) the Business Combination Agreement, (iv) the Voting Letter Agreement, (v) any Sponsor Loan (vi) the Securities Assignment Agreement, dated as of February 3, 2021, by and between the Sponsor and Hani Barhoush, (vii) the Securities Assignment Agreement, dated as of February 3, 2021, by and between the Sponsor and Michael Harsh, (viii) the Securities Assignment Agreement, dated as of February 3, 2021, by and between the Sponsor and Gwendolyn A. Watanabe, (ix) the Subscription Agreement, dated as of October 16, 2020, by and between Acquiror and the Sponsor, (x) the Letter Agreement, dated as of February 4, 2021, by and among Acquiror and Goldman Sachs & Co. LLC or (xi) any applicable securities Laws. Such CPUH Holder’s shares of CPUH Common Stock, CPUH Units and CPUH Warrants are the only equity securities of Acquiror owned of record or beneficially by such CPUH Holder on the date of this Sponsor Agreement, and none of such CPUH Holder’s shares of CPUH Common Stock, CPUH Units or CPUH Warrants are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such shares of CPUH Common Shares, CPUH Units or CPUH Warrants, except as provided hereunder or under the Voting Letter Agreement. Other than the CPUH Warrants and CPUH Units, on the date hereof, such CPUH Holder does not hold or own any rights to acquire (directly or indirectly) any equity securities of Acquiror or any equity securities convertible into, or which can be exchanged for, equity securities of Acquiror.

 

(c) No Conflicts. The execution and delivery of this Sponsor Agreement by such CPUH Holder does not, and the performance by such CPUH Holder of his, her or its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of such CPUH Holder, as applicable, or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon such CPUH Holder or such CPUH Holder’s shares of CPUH Common Shares or CPUH Warrants, as applicable), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such CPUH Holder of its obligations under this Sponsor Agreement.

 

B-7

 

 

(d) Litigation. There are no Actions pending against such CPUH Holder, or to the knowledge of such CPUH Holder threatened against such CPUH Holder, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Entity, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such CPUH Holder of its obligations under this Sponsor Agreement.

 

(e) Brokerage Fees. Except as described on Section 4.4 of the CPUH Disclosure Schedules, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the Business Combination Agreement based upon arrangements made by such CPUH Holder, for which Acquiror or any of its Affiliates may become liable.

 

(f)   Affiliate Arrangements. Except as set forth on Schedule II and for the Governing Documents of the Merger Subs, neither such CPUH Holder nor, to the knowledge of such CPUH Holder, any Person in which such CPUH Holder has a direct or indirect legal, contractual or beneficial ownership of five percent (5%) or greater is party to, or has any rights with respect to or arising from, any Contract with Acquiror or its Subsidiaries.

 

(g) Acknowledgment. Such CPUH Holder understands and acknowledges that each of Acquiror and the Company is entering into the Business Combination Agreement in reliance upon such CPUH Holder’s execution and delivery of this Sponsor Agreement.

 

(h) No Other Representations or Warranties. Except for the representations and warranties made by each CPUH Holder in this ARTICLE II, neither the CPUH Holders nor any other Person makes any express or implied representation or warranty to Acquiror or the Company in connection with this Sponsor Agreement or the transactions contemplated by this Sponsor Agreement, and each CPUH Holder expressly disclaims any such other representations or warranties.

 

ARTICLE III

MISCELLANEOUS

 

Section 3.1 Termination. This Sponsor Agreement and all of its provisions shall terminate and be of no further force or effect upon the earlier of (a) the Expiration Time, and (b) the written agreement of the Sponsor, Acquiror, Pubco and the Company. Upon such termination of this Sponsor Agreement, all obligations of the parties under this Sponsor Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Sponsor Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Sponsor Agreement prior to such termination. This ARTICLE III shall survive the termination of this Sponsor Agreement.

 

B-8

 

 

Section 3.2 Governing Law. This Sponsor Agreement and all disputes or controversies arising out of or relating to this Sponsor Agreement or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.

 

Section 3.3 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL.

 

(a) THE PARTIES TO THIS SPONSOR AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE) IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SPONSOR AGREEMENT AND ANY RELATED AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH AND BY THIS SPONSOR AGREEMENT. THE PARTIES TO THIS SPONSOR AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, AND AGREE NOT TO ASSERT, ANY DEFENSE IN ANY ACTION FOR THE INTERPRETATION OR ENFORCEMENT OF THIS SPONSOR AGREEMENT AND ANY RELATED AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH, THAT THEY ARE NOT SUBJECT THERETO OR THAT SUCH ACTION MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THIS SPONSOR AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS OR THAT THEIR PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE ACTION IS BROUGHT IN AN INCONVENIENT FORUM, OR THAT THE VENUE OF THE ACTION IS IMPROPER. SERVICE OF PROCESS WITH RESPECT THERETO MAY BE MADE UPON ANY PARTY TO THIS SPONSOR AGREEMENT BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS PROVIDED IN SECTION 3.8.

 

(b) WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SPONSOR AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SPONSOR AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SPONSOR AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SPONSOR AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 3.3.

 

B-9

 

 

Section 3.4 Assignment. This Sponsor Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Sponsor Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of all of the other parties hereto. Any attempted assignment of this Sponsor Agreement not in accordance with the terms of this Section 3.4 shall be void.

 

Section 3.5 Specific Performance. The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform their respective obligations under the provisions of this Sponsor Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Sponsor Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Sponsor Agreement and to enforce specifically the terms and provisions of this Sponsor Agreement and to enforce specifically the terms and provisions of this Sponsor Agreement, in each case, without posting a bond or undertaking and without proof of damages, and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief when expressly available pursuant to the terms of this Sponsor Agreement on the basis that (a) the other parties hereto have an adequate remedy at law, or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity.

 

Section 3.6 Amendment; Waiver. This Sponsor Agreement may not be amended, modified or terminated (other than as provided in Section 3.1), except upon a written agreement executed and delivered by Acquiror, the Company, Pubco and the Sponsor. Any waiver of any breach of this Sponsor Agreement extended by Acquiror, Pubco or the Company to the Sponsor shall not be construed as a waiver of any rights or remedies of Acquiror, Pubco or the Company with respect to any subsequent breach of the Sponsor. Any waiver of any provisions hereof by any party hereto shall not be deemed a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party.

 

Section 3.7 Severability. Whenever possible, each provision of this Sponsor Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Sponsor Agreement is held to be invalid, illegal or unenforceable under applicable Law, then all other provisions of this Sponsor Agreement shall remain in full force and effect. Upon such determination that any term or other provision of this Sponsor Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall take any actions necessary to render the remaining provisions of this Sponsor Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, negotiate in good faith to modify this Sponsor Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

B-10

 

 

Section 3.8 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by (a) delivery in person, (b) posting in the United States mail (having been sent registered or certified mail return receipt requested, postage prepaid), (c) FedEx or other nationally recognized overnight delivery service or (d) e-mail (having obtained electronic delivery confirmation thereof, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

 

If to Acquiror:

 

Compute Health Acquisition Corp.

1100 North Market Street, 4th Floor

Wilmington, DE 19890

Attention: Joshua Fink
  Jean Nehmé
 Email:jfink@ophir-holdings.com
  nehmejean3@gmail.com

 

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

 

Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West

New York, New York 10001

Attention: Howard L. Ellin
  Richard Witzel
 Email:Howard.Ellin@skadden.com
  Richard.Witzel@skadden.com

 

If to the Company or Pubco:

 

c/o Allurion Technologies, Inc.

11 Huron Drive

Natick, MA 01760

Attention: Chief Executive Officer
 Email: sgaur@allurion.com

 

with a copy (which will not constitute notice) to:

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Danielle M. Lauzon
  Paul R. Rosie
 E-mail:dlauzon@goodwinlaw.com
  prosie@goodwinlaw.com

 

B-11

 

 

If to the Sponsor:

 

Compute Health Sponsor LLC

1100 North Market Street, Suite 1300

Wilmington, DE 19890

Attention: Joshua Fink
  Jean Nehmé
 E-mail:jfink@ophir-holdings.com
  nehmejean3@gmail.com

 

with a copy (which will not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, New York 10001

Attention: Howard L. Ellin
  Richard Witzel
 Email:Howard.Ellin@skadden.com
  Richard.Witzel@skadden.com

 

If to a Holder:

 

To such Holder’s address as set forth in Schedule I

 

with a copy (which will not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, New York 10001

Attention: Howard L. Ellin
  Richard Witzel
 Email:Howard.Ellin@skadden.com
  Richard.Witzel@skadden.com

 

B-12

 

 

Section 3.9 Counterparts. This Sponsor Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Sponsor Agreement by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Sponsor Agreement.

 

Section 3.10 Fiduciary Duties. Notwithstanding anything in this Sponsor Agreement to the contrary, (a) each CPUH Holder makes no agreement or understanding herein in any capacity other than in such CPUH Holder’s capacity as a record holder and beneficial owner of shares of CPUH Common Stock, CPUH Warrants and other equity securities of Acquiror, and not in the CPUH Holder’s (or any of its representatives’) capacity as a director, officer or employee of any CPUH Party, and (b) nothing herein will be construed to limit or affect any action or inaction by any CPUH Holder or any representative of any CPUH Holder serving as a member of the board of directors (or other similar governing body) of any CPUH Party or as an officer, employee or fiduciary of any CPUH Party, in each case, acting in such person’s capacity as a director, officer, employee or fiduciary of such CPUH Party.

 

Section 3.11 Entire Agreement. This Sponsor Agreement and the agreements referenced herein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior understandings, agreements, representations or other arrangements, both written and oral, by or among the parties hereto with respect to the subject matter hereof.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]

 

B-13

 

 

IN WITNESS WHEREOF, the Sponsor, Acquiror, Pubco and the Company have each caused this Sponsor Support Agreement to be duly executed as of the date first written above.

 

  SPONSOR:
   
  COMPUTE HEALTH SPONSOR LLC
     
  By: /s/ Jean Nehme
    Name: Jean Nehme
    Title: Co-Chief Executive Officer

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

  ACQUIROR:
   
  Compute Health Acquisition Corp.
     
  By: /s/ Jean Nehme
    Name: Jean Nehme
    Title: Co-Chief Executive Officer

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

  COMPANY:
     
  Allurion Technologies, Inc.
     
  By: /s/ Shantanu Gaur
  Name: Shantanu Gaur
  Title: Chief Executive Officer

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

  PUBCO:
     
  Allurion Technologies Holdings, Inc.
     
  By: /s/ Shantanu Gaur
  Name: Shantanu Gaur
  Title: Chief Executive Officer

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

  HOLDERS:
   
  /s/ Hani Barhoush
  Hani Barhoush
   
  /s/ Michael Harsh
  Michael Harsh
   
  /s/ Gwendolyn A. Watanabe
  Gwendolyn A. Watanabe

 

[Signature Page to Sponsor Support Agreement]

 

 

 

 

Schedule I

 

Holder   Address
Hani Barhoush   c/o Compute Health Acquisition Corp.
  1100 North Market Street, 4th Floor
  Wilmington, Delaware 19890
     
Michael Harsh   c/o Compute Health Acquisition Corp.
  1100 North Market Street, 4th Floor
  Wilmington, Delaware 19890
     
Gwendolyn A. Watanabe   c/o Compute Health Acquisition Corp.
  1100 North Market Street, 4th Floor
  Wilmington, Delaware 19890

 

 

 

 

Schedule II

 

Affiliate Arrangements

 

1.Letter Agreement, dated February 4, 2021, by and among Acquiror, the Sponsor Osama Alswailem, Hani Barhoush, Joshua Fink, Michael Harsh, Omar Ishrak, Jean Nehmé and Gwendolyn A. Watanabe.

 

2.Registration Rights Agreement, dated February 4, 2021, by and among Acquiror, the Sponsor, Osama Alswailem, Hani Barhoush, Joshua Fink, Michael Harsh, Omar Ishrak, Jean Nehmé and Gwendolyn A. Watanabe.

 

3.Sponsor Warrants Purchase Agreement, dated February 4, 2021, by and between Acquiror and the Sponsor.

 

4.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Hani Barhoush.

 

5.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Joshua Fink.

 

6.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Michael Harsh.

 

7.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Omar Ishrak.

 

8.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Jean Nehmé.

 

9.Indemnity Agreement, dated February 4, 2021, by and between Acquiror and Gwendolyn A. Watanabe.

 

10.Administrative Services Agreement, dated February 4, 2021, by and between Acquiror and the Sponsor.

 

11.Promissory Note, dated April 6, 2021, by and between Acquiror, debtor, and the Sponsor, creditor, in the amount of $1,500,000.

 

12.Promissory Note, dated July 28, 2022, by and between Acquiror, debtor, and the Sponsor, creditor, in the amount of $1,500,000.

 

13.Promissory Note, dated February 9, 2023, by and between Acquiror, debtor, and the Sponsor, creditor, in the amount of $4,750,000.

 

14.PIPE Subscription Agreement, dated February 9, 2023, by and among Acquiror, Pubco and Omar Ishrak.

 

15.Non-Redemption Agreement, dated February 9, 2023, by and among Acquiror, Pubco, the Company and Medtronic, Inc.

 

16.RTW Side Letter, dated February 9, 2023, by and among Acquiror, Merger Sub II, the Company, Pubco, RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd. and RTW Venture Fund Limited.

 

 

 

 

Annex A

 

Form of Joinder Agreement

 

This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining Party”) in accordance with the Sponsor Support Agreement, dated as of February 9, 2023 (as amended, supplemented or otherwise modified from time to time, the “Support Agreement”), by and among Compute Health Sponsor LLC, a Delaware limited liability company, Compute Health Acquisition Corp., a Delaware corporation, Allurion Technologies Holdings, Inc., a Delaware corporation, the Persons set forth on Schedule 1 attached to the Support Agreement and Allurion Technologies, Inc., a Delaware corporation. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Support Agreement.

 

The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to, and a “CPUH Holder” under, the Support Agreement as of the date hereof and shall have all of the rights and obligations of such CPUH Holder as if it had executed the Support Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Support Agreement.

 

IN WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as of the date written below.

 

Date:    
     
  By:            
    Name:   
    Title:  
   
  Address for Notices:
   
  With copies to:

 

[Annex A to Sponsor Support Agreement]

 

 

 

 

 

 

Exhibit 10.2

 

Exhibit C

 

STOCKHOLDER SUPPORT AGREEMENT

 

This Stockholder Support Agreement (this “Agreement”) is dated as of February 9, 2023, by and among Compute Health Acquisition Corp., a Delaware corporation (“Acquiror”), the Persons set forth on Schedule I (each, a “Company Stockholder” and, collectively, the “Company Stockholders”), Allurion Technologies Holdings, Inc., a Delaware corporation (“Pubco”), and Allurion Technologies, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).

 

RECITALS

 

WHEREAS, as of the date hereof, the Company Stockholders are the holders of record and the “beneficial owners” (within the meaning of Rule 13d-3 under the Exchange Act) of such number of Company Shares as are indicated opposite each of their names on Schedule I (all such Company Shares, together with any Company Shares of which ownership of record or the power to vote (including, without limitation, by proxy or power of attorney) is hereafter acquired by any such Company Stockholder during the period from the date hereof through the Expiration Time (as defined below) are referred to herein as the “Subject Shares”);

 

WHEREAS, contemporaneously with the execution and delivery of this Agreement, Acquiror, Compute Health Corp., a Delaware corporation and a direct, wholly-owned subsidiary of Acquiror (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company and a direct, wholly-owned subsidiary of Acquiror (“Merger Sub II”), Pubco and the Company have entered into that certain Business Combination Agreement (as may be amended or modified from time to time, the “Business Combination Agreement”), dated as of the date hereof, pursuant to which, among other transactions, as part of the same overall transaction, (a) CPUH is to merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the publicly-listed company (the “Surviving Corporation”), (b) thereafter, Merger Sub I is to merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of the Surviving Corporation (the “Intermediate Merger”) and (c) thereafter, the Company is to merge with and into Merger Sub II, with Merger Sub II surviving as a wholly-owned subsidiary of the Surviving Corporation (collectively with the CPUH Merger and the Intermediate Merger, the “Mergers”), in each case on the terms and conditions set forth therein; and

 

WHEREAS, as an inducement to Acquiror and the Company to enter into the Business Combination Agreement and to consummate the transactions contemplated therein, the parties hereto desire to agree to certain matters as set forth herein.

 

AGREEMENT

 

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

 

C-1

 

 

ARTICLE I
stockholder SUPPORT AGREEMENT; COVENANTS

 

Section 1.1 Binding Effect of Business Combination Agreement. Each Company Stockholder hereby acknowledges that he, she or it has read the Business Combination Agreement and this Agreement and has had the opportunity to consult with his, her or its tax and legal advisors. Each Company Stockholder shall be bound by and comply with Sections 5.6 (Exclusive Dealing) in respect of Company Acquisition Proposals and 5.4 (Public Announcements) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as if (a) such Company Stockholder was an original signatory to the Business Combination Agreement with respect to such provisions, and (b) each reference to the “Company” contained in Section 5.6 of the Business Combination Agreement also referred to each such Company Stockholder.

 

Section 1.2 No Transfer. During the period commencing on the date hereof and ending on the earlier of (a) the Intermediate Merger Effective Time and (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 7.1 thereof (the earlier of clauses (a) and (b), the “Expiration Time”), each Company Stockholder shall not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase (or Lien on), deposit into a voting trust or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Registration Statement/Proxy Statement, the Resale Registration Statement or the Registration Statement (as defined in the Subscription Agreements)) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Subject Shares, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Shares (clauses (i) and (ii) collectively, a “Transfer”) or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii); provided, however, that the foregoing shall not prohibit Transfers between the Company Stockholder and any Affiliate of the Company Stockholder, so long as, prior to and as a condition to the effectiveness of any such Transfer, such Affiliate executes and delivers to Acquiror a joinder to this Agreement in the form attached hereto as Annex A.

 

Section 1.3 New Shares. In the event that (a) any Subject Shares are issued to a Company Stockholder after the date of this Agreement pursuant to any stock dividend, stock split or sub-division, recapitalization, reclassification, combination or exchange of Subject Shares or otherwise, (b) a Company Stockholder purchases or otherwise acquires beneficial ownership of any Subject Shares after the date of this Agreement (including pursuant to the exercise of any option or other applicable equity award), or (c) a Company Stockholder acquires the right to vote or share in the voting of any Subject Shares after the date of this Agreement (collectively, the “New Securities”), then such New Securities acquired or purchased by such Company Stockholder shall be subject to the terms of this Agreement to the same extent as if they constituted the Subject Shares owned by such Company Stockholder as of the date hereof.

 

Section 1.4 Company Stockholder Agreements. Hereafter until the Expiration Time, each Company Stockholder hereby unconditionally and irrevocably agrees that, at any meeting of the stockholders of the Company (or any adjournment or postponement thereof), and in any action by written consent of the stockholders of the Company distributed by the Board of Directors of the Company or otherwise undertaken in connection with or as contemplated by the Business Combination Agreement or the transactions contemplated thereby (which written consent shall be delivered as promptly as reasonably practicable, and in any event within forty-eight (48) hours following the date that the Registration Statement (as contemplated by the Business Combination Agreement) becomes effective), such Company Stockholder shall, if a meeting is held, appear at the meeting (or any adjournment or postponement thereof), in person or by proxy, or otherwise cause its Subject Shares (to the extent such Subject Shares are entitled to vote on or provide consent with respect to such matter) to be counted as present thereat for purposes of establishing a quorum, and such Company Stockholder shall vote or provide consent (or cause to be voted or consented), in person or by proxy, all of its Subject Shares (to the extent such Subject Shares are entitled to vote on or provide consent with respect to such matter):

 

(a) to approve and adopt the Business Combination Agreement, the Ancillary Documents to which the Company or Pubco is or will be a party and the transactions contemplated thereby, including the Mergers, and any other matters necessary or reasonably requested by the Company or Pubco for the consummation thereof;

 

C-2

 

 

(b) to approve an amendment to the Company Certificate of Incorporation to increase the authorized shares of Company Common Stock to ensure that the Company has authorized and reserved a sufficient number of shares of Company Common Stock for the Convertible Notes Conversion and waive any preemptive rights, antidilution protection, rights of notice or other rights under the Company Certificate of Incorporation, the Company’s Governing Documents or the Stockholder Agreements (as defined below) in connection with such Convertible Notes Conversion;

 

(c) in any other circumstances upon which a consent, waiver or other approval may be required under the Company’s Governing Documents, under any Company Convertible Notes or Company Warrants, or under any agreements between the Company and its stockholders, including, without limitation, the (i) Fourth Amended and Restated Investors’ Rights Agreement, dated as of July 23, 2021, by and among the Company, Jonathan D. Wecker, Ram Chuttani, Samuel G. Levy and Shantanu K. Gaur (the “Founders”) and the other stockholders party thereto, as amended, (ii) Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of July 23, 2021, by and among the Company, the Founders, The Shantanu K. Gaur Revocable Trust of 2021, The Gaur Family Irrevocable Trust of 2021 and the other stockholders party thereto, as amended, (iii) Amended and Restated Voting Agreement, dated as of July 23, 2021, by and among the Company, the Founders, The Shantanu K. Gaur Revocable Trust of 2021, The Gaur Family Irrevocable Trust of 2021 and the other stockholders party thereto, as amended, (iv) Series D Preferred Stock Purchase Agreement, dated as of July 23, 2021, by and among the Company and the stockholders party thereto, as amended, (v) Series C Management Rights Letter, effective as of January 17, 2017, by and between the Company and Romulus Growth Allurion L.P. and (vi) Letter Agreement, dated as of January 17, 2017, by and between the Company and Romulus Growth Allurion L.P. (the agreements referenced in the preceding clauses (i) through (vi), collectively, the “Stockholders Agreements”), to implement the Business Combination Agreement or any Ancillary Document or any of the transactions contemplated thereby, to vote, consent, waive or approve (or cause to be voted, consented, waived or approved) all of such Company Stockholder’s Subject Shares held at such time in favor thereof;

 

(d) against any merger agreement, merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or Pubco (other than the Business Combination Agreement and the transactions contemplated thereby, including the Mergers), including any Company Acquisition Proposal; and

 

C-3

 

 

(e) against any proposal, action or agreement that would (A) impede, frustrate, prevent or nullify any provision of this Agreement, the Business Combination Agreement, any Ancillary Document or the transactions contemplated hereby or thereby, including the Mergers, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company or Pubco under the Business Combination Agreement or any Ancillary Document or (C) result in any of the conditions set forth in Article 6 of the Business Combination Agreement not being fulfilled.

 

Each Company Stockholder hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing.

 

Without limiting any other rights or remedies of the Company, each Company Stockholder hereby irrevocably appoints the Company or any individual designated by the Company as such Company Stockholder’s agent, attorney-in-fact and proxy (with full power of substitution and resubstitution), for and in the name, place and stead of such Company Stockholder, up to the Expiration Time, to attend on behalf of such Company Stockholder any meeting of the stockholders of the Company with respect to the matters described in this Section 1.4, to include the Subject Shares held in any computation for purposes of establishing a quorum at any such meeting of the stockholders of the Company, to vote (or cause to be voted) such Subject Shares or consent (or withhold consent) with respect to any of the matters described in this Section 1.4 in connection with any meeting of the stockholders of the Company or any action by written consent by the stockholders of the Company, in each case, only in the event and to the extent that such Company Stockholder fails to timely perform or otherwise comply with the covenants, agreements or obligations set forth in this Section 1.4. The proxyholder may not exercise the proxy granted pursuant to this Section 1.4 on any matter except those provided in this Section 1.4, and each Company Stockholder may vote its, his or her Subject Shares on all other matters, subject to the other applicable covenants, agreements and obligations set forth in this Agreement. The proxy granted by each Company Stockholder pursuant to this Section 1.4 (i) will be automatically revoked upon the Expiration Time, (ii) is coupled with an interest sufficient in law to support, subject to clause (i), an irrevocable proxy, and (iii) is a durable proxy and shall survive the bankruptcy, dissolution, death, incapacity or other inability to act by such Company Stockholder and shall revoke any and all prior proxies granted by such Company Stockholder with respect to its Subject Shares. The vote or consent of the proxyholder in accordance with this Section 1.4 and with respect to the matters in this Section 1.4 shall control in the event of any conflict between such vote or consent by such proxyholder and a vote or consent by each Company Stockholder (or any other Person with the power to vote such Company Stockholder’s Subject Shares) with respect to the matters in this Section 1.4.

 

Section 1.5 Affiliate Agreements. Each Company Stockholder, severally and not jointly, hereby agrees and consents to the termination of each of the Stockholders Agreements and all Related Party Contracts and accounts set forth on Section 5.2(a) of the Company Disclosure Schedules to which such Company Stockholder is party, effective as of the Intermediate Merger Effective Time, without any further obligations or liabilities to the Company and its Affiliates (including, after the Intermediate Merger Effective Time, Pubco).

 

Section 1.6 Investor Rights Agreement. Each of the Company Stockholders on behalf of himself, herself or itself, agrees that it will deliver, substantially simultaneously with the Intermediate Merger Effective Time, a duly-executed counterpart to the Investor Rights Agreement substantially in the form attached as Exhibit A to the Business Combination Agreement.

 

C-4

 

 

Section 1.7 Further Assurances. Each Company Stockholder shall take, or cause to be taken, all such further actions and do, or cause to be done, all things reasonably necessary (including under applicable Laws) to effect the actions required to consummate the Mergers and the other transactions contemplated by this Agreement and the Business Combination Agreement, in each case, on the terms and subject to the conditions set forth therein and herein, as applicable.

 

Section 1.8 No Inconsistent Agreement. Each Company Stockholder hereby represents and covenants that such Company Stockholder has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of such Company Stockholder’s obligations hereunder.

 

Section 1.9 No Challenges

 

. Each Company Stockholder agrees not to (a) exercise any appraisal rights or any dissenters’ rights that such Company Stockholder may have (whether under applicable Law or otherwise) or could potentially have or acquire in connection with the Business Combination Agreement and the transactions contemplated by the Business Combination Agreement, including the Mergers, or (b) voluntarily commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Acquiror, Merger Sub I, Merger Sub II, Pubco, the Company or any of their respective successors, directors or managers, (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (ii) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into the Business Combination Agreement or any of the Ancillary Documents (including this Agreement) or the Mergers. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit such Company Stockholder from enforcing such Company Stockholder’s rights under this Agreement and the other agreements entered into in by such Company Stockholder in connection herewith, including such Company Stockholder’s right to receive such Company Stockholder’s portion of the (A) Aggregate Intermediate Merger Closing Merger Consideration and (B) if applicable pursuant to the terms of the Business Combination Agreement, Contingency Consideration, in each case as provided in the Business Combination Agreement.

 

Section 1.10 Consent to Disclosure. Each Company Stockholder hereby consents to the publication and disclosure in the Registration Statement/Proxy Statement and the Resale Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by Acquiror, Pubco or the Company to any Governmental Entity or to securityholders of Acquiror or Pubco) of such Company Stockholder’s identity and beneficial ownership of Subject Shares and the nature of such Company Stockholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Acquiror, Pubco or the Company, a copy of this Agreement. Each Company Stockholder will promptly provide any information reasonably requested by Acquiror, Pubco or the Company for any regulatory application or filing made or approval sought in connection with the transactions contemplated by the Business Combination Agreement (including filings with the SEC), subject to confidentiality obligations that may be applicable to information furnished to the Company or any of the Company’s Subsidiaries by third parties that may be in the Company’s or any of its Subsidiaries’ possession from time to time, and except for any information that is subject to attorney-client privilege (provided that, to the extent reasonably possible, the parties hereto shall cooperate in good faith to permit disclosure of such information in a manner that preserves such privilege or compliance with such confidentiality obligation), to the extent permitted by applicable Law.

 

C-5

 

 

Section 1.11 No Agreement as Director or Officer. Notwithstanding anything to the contrary herein, each Company Stockholder is entering into this Agreement solely in the Company Stockholder’s capacity as record or beneficial owner of Subject Shares and nothing herein is intended to or shall limit or affect any actions taken by any employee, officer, director (or person performing similar functions), partner or other Affiliate (including, for this purpose, any appointee or representative of the Company Stockholder to the board of directors of the Company) of the Company Stockholder, solely in his or her capacity as a director or officer of the Company (or a Subsidiary of the Company, including Pubco prior to the CPUH Merger Effective Time) or other fiduciary capacity for the Company Stockholders.

 

ARTICLE II
REPRESENTATIONS AND WARRANTIES

 

Section 2.1 Representations and Warranties of the Company Stockholders. Each Company Stockholder represents and warrants as of the date hereof to Acquiror and the Company (severally and not jointly, and solely with respect to itself, himself or herself and not with respect to any other Company Stockholder) as follows:

 

(a) Organization; Due Authorization. If such Company Stockholder is not an individual, it is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Company Stockholder’s corporate, limited liability company or organizational powers and have been duly authorized by all necessary corporate, limited liability company or organizational actions on the part of such Company Stockholder. If such Company Stockholder is an individual, such Company Stockholder has full legal capacity, right and authority to execute and deliver this Agreement and to perform his or her obligations hereunder. This Agreement has been duly executed and delivered by such Company Stockholder and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of such Company Stockholder, enforceable against such Company Stockholder in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies). If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of the applicable Company Stockholder.

 

(b) Ownership. Such Company Stockholder is the record and beneficial owner (as defined in the Securities Act) of, and has good title to, all of such Company Stockholder’s Subject Shares, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Shares (other than transfer restrictions under the Securities Act)) affecting any such Subject Shares, other than Liens (a) pursuant to (i) this Agreement, (ii) the Company’s Governing Documents, (iii) the Stockholder Agreements, (iv) the Business Combination Agreement, or (v) any applicable securities Laws or (b) that would not, individually or in the aggregate, reasonably be expected to prevent, delay or impair the ability of the Company Stockholder to perform its obligations under this Agreement or the consummation of the transactions contemplated by this Agreement or the Business Combination Agreement. Such Company Stockholder’s Subject Shares are the only Company Shares owned of record or beneficially by such Company Stockholder on the date of this Agreement, and none of such Company Stockholder’s Subject Shares are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Shares. Other than as set forth opposite such Company Stockholder’s name on Schedule I, such Company Stockholder does not hold or own any rights to acquire (directly or indirectly) any equity securities of the Company or any equity securities convertible into, or which can be exchanged for, equity securities of the Company.

 

C-6

 

 

(c) No Conflicts. The execution and delivery of this Agreement by such Company Stockholder does not, and the performance by such Company Stockholder of his, her or its obligations hereunder will not, (i) if such Company Stockholder is not an individual, conflict with or result in a violation of the organizational documents of such Company Stockholder or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon such Company Stockholder or such Company Stockholder’s Subject Shares), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such Company Stockholder of its, his or her obligations under this Agreement.

 

(d) Litigation. There are no Actions pending against such Company Stockholder, or to the knowledge of such Company Stockholder threatened against such Company Stockholder, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Entity, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Company Stockholder of its, his or her obligations under this Agreement.

 

(e) Adequate Information. Such Company Stockholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of Acquiror, the Company and Pubco to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon Acquiror, the Company or Pubco and based on such information as such Company Stockholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Company Stockholder acknowledges that Acquiror, the Company and Pubco have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Company Stockholder acknowledges that the agreements contained herein with respect to the Subject Shares held by such Company Stockholder are irrevocable.

 

(f) Brokerage Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the Business Combination Agreement based upon arrangements made by such Company Stockholder, for which the Company or any of its Affiliates (including Pubco) may become liable.

 

(g) Acknowledgment. Such Company Stockholder understands and acknowledges that each of Acquiror and the Company is entering into the Business Combination Agreement in reliance upon such Company Stockholder’s execution and delivery of this Agreement.

 

Section 2.2 No Other Representations or Warranties. Except for the representations and warranties made by each Company Stockholder in this ARTICLE II, no Company Stockholder nor any other Person makes any express or implied representation or warranty to Acquiror in connection with this Agreement or the transactions contemplated by this Agreement, and each Company Stockholder expressly disclaims any such other representations or warranties.

 

ARTICLE III
MISCELLANEOUS

 

Section 3.1 Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earlier of (a) the Expiration Time and (b) the written agreement of Acquiror, the Company, Pubco and each Company Stockholder. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Agreement prior to such termination. This ARTICLE III shall survive the termination of this Agreement.

 

C-7

 

 

Section 3.2 Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.

 

Section 3.3 CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL.

 

(a) THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, TO THE EXTENT SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE) IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND ANY RELATED AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH AND BY THIS AGREEMENT. THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, AND AGREE NOT TO ASSERT, ANY DEFENSE IN ANY ACTION FOR THE INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT AND ANY RELATED AGREEMENT, CERTIFICATE OR OTHER DOCUMENT DELIVERED IN CONNECTION HEREWITH, THAT THEY ARE NOT SUBJECT THERETO OR THAT SUCH ACTION MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SUCH COURTS OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS OR THAT THEIR PROPERTY IS EXEMPT OR IMMUNE FROM EXECUTION, THAT THE ACTION IS BROUGHT IN AN INCONVENIENT FORUM, OR THAT THE VENUE OF THE ACTION IS IMPROPER. SERVICE OF PROCESS WITH RESPECT THERETO MAY BE MADE UPON ANY PARTY TO THIS AGREEMENT BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT ITS ADDRESS AS PROVIDED IN Section 3.8.

 

(b) WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 3.3.

 

Section 3.4 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of all of the other parties hereto. Any attempted assignment of this Agreement not in accordance with the terms of this Section 3.4 shall be void.

 

C-8

 

 

Section 3.5 Specific Performance. The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform their respective obligations under the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement and to enforce specifically the terms and provisions of this Agreement, in each case, without posting a bond or undertaking and without proof of damages, and this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief when expressly available pursuant to the terms of this Agreement on the basis that (a) the other parties hereto have an adequate remedy at law, or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity.

 

Section 3.6 Amendment; Waiver. This Agreement may not be amended, modified or terminated (other than as provided in Section 3.1), except upon a written agreement executed and delivered by Acquiror, the Company, Pubco and each of the Company Stockholders. Any waiver of any breach of this Agreement extended by Acquiror to a Company Stockholder shall not be construed as a waiver of any rights or remedies of Acquiror with respect to any other Company Stockholder or with respect to any subsequent breach of such Company Stockholder or any other such Company Stockholder. Any waiver of any provisions hereof by any party hereto shall not be deemed a waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a continuing waiver of any provision hereof by such party. Notwithstanding the foregoing, (a) Schedule I hereto may be amended by the Company from time to time to add transferees of any Subject Shares in compliance with the terms of this Agreement without the consent of the other parties and (b) Schedule I hereto may also be amended by the Company after the date of this Agreement without the consent of the other parties to add information regarding any Additional Company Stockholder who becomes a party to this Agreement in accordance with Section 3.11.

 

Section 3.7 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, then all other provisions of this Agreement shall remain in full force and effect. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

C-9

 

 

Section 3.8 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) by (a) delivery in person, (b) posting in the United States mail (having been sent registered or certified mail return receipt requested, postage prepaid), (c) FedEx or other nationally recognized overnight delivery service or (d) e-mail (having obtained electronic delivery confirmation thereof, but excluding any automated reply, such as an out-of-office notification), addressed as follows:

 

  If to Acquiror:  
     
  Compute Health Acquisition Corp.  
  1100 North Market Street, 4th Floor  
  Wilmington, DE 19890  
  Attention: Joshua Fink  
    Jean Nehmé  
  Email: jfink@ophir-holdings.com  
    nehmejean3@gmail.com  
       
  with a copy (which shall not constitute notice) to:  
     
  Skadden, Arps, Slate, Meagher & Flom LLP  
  One Manhattan West  
  New York, New York 10001  
  Attention: Howard L. Ellin  
    Richard Witzel  
  Email: Howard.Ellin@skadden.com  
    Richard.Witzel@skadden.com  
     
  If to the Company or Pubco:  
     
  c/o Allurion Technologies, Inc.  
  11 Huron Drive  
  Natick, MA 01760  
  Attention: Chief Executive Officer  
  Email: sgaur@allurion.com  
     
  with a copy (which will not constitute notice) to:  
     
  Goodwin Procter LLP  
  100 Northern Avenue  
  Boston, MA 02210  
  Attention: Danielle M. Lauzon  
    Paul R. Rosie  
  E-mail: dlauzon@goodwinlaw.com  
    prosie@goodwinlaw.com  
       
  If to a Company Stockholder:  
     
  To such Company Stockholder’s address set forth in Schedule I  
     
  with a copy (which will not constitute notice) to:  
     
  Goodwin Procter LLP  
  100 Northern Avenue  
  Boston, MA 02210  
  Attention: Danielle M. Lauzon and Paul R. Rosie  
  E-mail: dlauzon@goodwinlaw.com, prosie@goodwinlaw.com  

 

C-10

 

 

Section 3.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail, or scanned pages shall be effective as delivery of a manually executed counterpart to this Agreement.

 

Section 3.10 Several Liability. The liability of any Company Stockholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Company Stockholder be liable for any other Company Stockholder’s breach of such other Company Stockholder’s representations, warranties, covenants, or agreements contained in this Agreement.

 

Section 3.11 Additional Company Stockholders. Notwithstanding anything to the contrary contained herein, in connection with Section 5.24 of the Business Combination Agreement, any stockholder of the Company that is an accredited investor (as defined in Rule 501 of Regulation D under the Securities Act) and not a party to this Agreement as of the date hereof (each, an “Additional Company Stockholder”) may become a party to this Agreement after the date hereof by executing and delivering a joinder to this Agreement in the form attached hereto as Annex A to the Company, Pubco and Acquiror, and thereafter such Additional Company Stockholder shall be deemed a “Company Stockholder” for all purposes hereunder. No action or consent by Acquiror, Pubco or the Company shall be required for such joinder to this Agreement by such Additional Company Stockholder (other than that the Company shall update Schedule A hereto to include such Additional Company Stockholder), so long as such Additional Company Stockholder has agreed in writing to be bound by all of the obligations as a “Company Stockholder” hereunder and executed and delivered such joinder to this Agreement in accordance with this Section 3.11.

 

Section 3.12 Entire Agreement. This Agreement and the agreements referenced herein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior understandings, agreements, representations or other arrangements, both written and oral, by or among the parties hereto with respect to the subject matter hereof.

 

Section 3.13 Trust Account Waiver. Each of the Company Stockholders, the Company and Pubco, on behalf of themselves and each of their respective subsidiaries, and each of their respective agents, Representatives and any other person or entity acting on its and their behalf (collectively, “Related Parties”), hereby acknowledges that Acquiror has established a trust account (the “Trust Account”) to hold the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (in each case, including any interest accrued from time to time thereon) for the benefit of Acquiror’s public stockholders and certain other parties. For and in consideration of Acquiror entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Company Stockholders, the Company and Pubco, on behalf of itself and its Related Parties, hereby agrees that it shall not, in connection with this Agreement, seek to enforce any right, title or interest in or to, or initiate any action, claim, suit or proceeding of any kind against, the assets held in the Trust Account or the trustee thereof. Acquiror hereby acknowledges that any such claim that any of the Company Stockholders, the Company or their Affiliates may have arising at any time prior to the consummation of the Mergers is not waived or released pursuant to this paragraph but may be preserved and initiated against Acquiror at any time after the consummation of the Mergers, and that nothing in this paragraph shall preclude any claims by any of the Company Stockholders, the Company or any of their Related Parties against (a) Acquiror seeking recourse against any assets of Acquiror other than the Trust Account, or (b) assets released to Acquiror from the Trust Account upon the consummation of the Mergers. This Section 3.12 shall survive any expiration or termination of this Agreement.

 

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]

 

C-11

 

 

IN WITNESS WHEREOF, the Company Stockholders, Acquiror, Pubco and the Company have each caused this Stockholder Support Agreement to be duly executed as of the date first written above.

 

  COMPANY STOCKHOLDERS:
   
  Amarat Investments Limited
     
  By: /s/ Ismail Al-Harthi
  Name: Ismail Al-Harthi
  Title:  Authorized Signatory

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Romulus Growth Allurion L.P.
     
  By: /s/ Krishna Gupta
    Name: Krishna Gupta
    Title:  General Partner

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  SAMIN CAPITAL LLC
     
  By: /s/ Krishna Gupta
    Name: Krishna Gupta
    Title:   Manager

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Shantanu K. Gaur and Neha Gaur, Trustees of THE SHANTANU K. GAUR REVOCABLE TRUST OF 2021
     
  By: /s/ Shantanu Gaur
    Name:  Shantanu Gaur
    Title: Trustee

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Steven M. Burke, Esq. and Neha Gaur, Trustees of THE GAUR FAMILY IRREVOCABLE TRUST OF 2021
     
  By: /s/ Neha R. Gaur
    Name:  Neha R. Gaur
    Title: Trustee

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Romulus Allurion Special Opportunity L.P.
     
  By: /s/ Krishna Gupta
    Name: Krishna Gupta
    Title:  General Partner

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Samuel G. Levy
   
  /s/ Samuel G. Levy

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Ram Chuttani
   
  /s/ Ram Chuttani

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  Michael Davin
   
  /s/ Michael Davin

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

 

Shantanu K. Gaur

   
  /s/ Shantanu Gaur

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

 

Todd Zavodnick

   
  /s/ Todd Zavodnick

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

 

Chris Geberth

   
  /s/ Chris Geberth

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  ACQUIROR:
   
  Compute Health Acquisition Corp.
     
  By: /s/ Jean Nehme
    Name: Jean Nehme
    Title:  Co-Chief Executive Officer

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  COMPANY:
   
  Allurion Technologies, Inc.
     
  By: /s/ Shantanu Gaur
    Name: Shantanu Gaur
    Title:  Chief Executive Officer

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

  PUBCO:
   
  ALLURION TECHNOLOGIES HOLDINGS, INC.
     
  By: /s/ Shantanu Gaur
    Name: Shantanu Gaur
    Title:  Chief Executive Officer

 

[Signature Page to Stockholder Support Agreement]

 

 

 

 

Schedule I

 

Company Stockholder Subject Shares

 

Company Stockholder  Address  Common Stock   Series A-1 Preferred Stock   Series A Preferred Stock   Series B Preferred Stock   Series C Preferred Stock   Series D-1 Preferred Stock   Series D-2 Preferred Stock   Series D-3 Preferred Stock   Options and RSU's Outstanding Under 2010 Stock Incentive Plan   Options and RSU's Outstanding Under 2020 Stock Option and Grant Plan 
Amarat Investments Limited  ###                                                1,519,756        913,700                              
Samuel G. Levy  ###   1,514,670                                       175,000      
Romulus Growth Allurion L.P.  ###                       3,194,528                          
Ram Chuttani  ###   1,700,306                                       190,000      
Michael Davin  ###                                 34,883         135,000    30,000 
Shantanu K. Gaur  ###                                                        225,000    987,085 

 

[Schedule I to Stockholder Support Agreement]

 

 

 

 

Company Stockholder   Address   Common Stock     Series A-1 Preferred Stock     Series A Preferred Stock     Series B Preferred Stock     Series C Preferred Stock     Series D-1 Preferred Stock     Series D-2 Preferred Stock     Series D-3 Preferred Stock     Options and RSU's Outstanding Under 2010 Stock Incentive Plan     Options and RSU's Outstanding Under 2020 Stock Option and Grant Plan  
Todd Zavodnick   ###                                                                     90,000       30,000  
SAMIN CAPITAL LLC   ###                                                     546,240                          
Shantanu K. Gaur and Neha Gaur, Trustees of THE SHANTANU K. GAUR REVOCABLE TRUST OF 2021   ###   1,106,670                                                                          
Steven M. Burke, Esq. and Neha Gaur, Trustees of THE GAUR FAMILY IRREVOCABLE TRUST OF 2021   ###     560,000                                                                          
Romulus Allurion Special Opportunity L.P.   ###                                                             901,126                                                            

 

[Schedule I to Stockholder Support Agreement]

 

 

 

 

Company Stockholder   Address   Common Stock     Series A-1 Preferred Stock     Series A Preferred Stock     Series B Preferred Stock     Series C Preferred Stock     Series D-1 Preferred Stock     Series D-2 Preferred Stock     Series D-3 Preferred Stock     Options and RSU's Outstanding Under 2010 Stock Incentive Plan     Options and RSU's Outstanding Under 2020 Stock Option and Grant Plan  
Chris Geberth   ###                                                                                                                                                               319,890  

 

[Schedule I to Stockholder Support Agreement]

 

 

 

 

Annex A

 

Form of Joinder Agreement

 

This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the undersigned (the “Joining Party”) in accordance with the Stockholder Support Agreement, dated as of February 9, 2023 (as amended, supplemented or otherwise modified from time to time, the “Support Agreement”), by and among Compute Health Acquisition Corp., a Delaware corporation, Allurion Technologies, Inc., a Delaware corporation, Allurion Technologies Holdings, Inc., a Delaware corporation, and the Company Stockholders set forth on Schedule I thereto. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Support Agreement.

 

The Joining Party hereby acknowledges, agrees, confirms, represents and warrants that he, she or it is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act), or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable requirements set forth on Exhibit A hereto.

 

The Joining Party acknowledges and agrees that the shares of Pubco Common Stock that the Joining Party will receive as consideration for his, her or its Subject Shares pursuant to Section 2.1(a)(xv) of the Business Combination Agreement (the “Applicable Pubco Shares”) are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Applicable Pubco Shares will not be registered under the Securities Act at the time of issuance and that the Surviving Corporation is not required to register the Applicable Pubco Shares except as set forth in the Business Combination Agreement.  The Joining Party acknowledges and agrees that such Applicable Pubco Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Joining Party absent an effective registration statement under the Securities Act (including the Resale Registration Statement (as defined in the Business Combination Agreement)), except (i) to the Surviving Corporation or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i)-(ii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or account entries representing the Applicable Pubco Shares shall contain a restrictive legend to such effect. The Joining Party acknowledges and agrees that the Applicable Pubco Shares will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, the Joining Party may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Applicable Pubco Shares and may be required to bear the financial risk of an investment in the Applicable Pubco Shares for an indefinite period of time.  The Joining Party acknowledges and agrees that the Applicable Pubco Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year following the filing of certain required information with the Commission after the Closing Date (as defined in the Business Combination Agreement). The Joining Party acknowledges and agrees that he, she or it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Applicable Pubco Shares.

 

[Exhibit A to Stockholder Support Agreement]

 

 

 

 

The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed to be a party to, and a “Company Stockholder” under, the Support Agreement as of the date hereof and shall have all of the rights and obligations of a Company Stockholder as if it had executed the Support Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Support Agreement.

 

IN WITNESS WHEREOF, the undersigned has duly executed this Joinder Agreement as of the date written below.

 

Date:

   
     
  By:  
    Name:
    Title:
   
  Address for Notices:
   
  With copies to:

 

[Exhibit A to Stockholder Support Agreement]

 

 

 

 

Exhibit A

ELIGIBILITY REPRESENTATIONS OF THE JOINING PARTY

 

This Annex A should be completed and signed by the Joining Party
and constitutes a part of the Joinder Agreement to the Company Support Agreement.

 

ACCREDITED INVESTOR STATUS (Please check the box)

 

The Joining Party is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.”

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. The Joining Party has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to the Joining Party and under which the Joining Party accordingly qualifies as an “accredited investor.”

 

Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company;

 

Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state;

 

Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act;

 

Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”;

 

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

 

[Annex A to Joinder Agreement]

 

 

 

 

Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act;

 

Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000;

 

Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment;

 

Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or

 

Any entity in which all of the equity owners are “accredited investors”.

 

Specify which tests:

 

Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;

 

Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability;

 

Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;

 

Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor status; or

 

Any natural person who is a “knowledgeable employee,” as defined in the Investment Company Act, of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act.

 

This page should be completed by the Joining Party and constitutes a part of the
Joinder to the Company Support Agreement.

 

[Annex A to Joinder Agreement]

 

 

 

 

 

  JOINING PARTY:
  Print Name:
     
  By:  
  Name:  
  Title:  

 

[Annex A to Joinder Agreement]

 

 

 

 

Exhibit 10.3

 

NON-REDEMPTION AGREEMENT

 

THIS NON-REDEMPTION AGREEMENT (this “Agreement”), dated as of February 9, 2023, is made by and among Compute Health Acquisition Corp., a Delaware corporation (the “SPAC”), Allurion Technologies Holdings, Inc., a Delaware corporation (“Pubco”), Allurion Technologies, Inc., a Delaware corporation (the “Target”), and Medtronic, Inc., a Minnesota corporation (the “Investor”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).

 

RECITALS

 

WHEREAS, the SPAC, Pubco, the Target, Compute Health Corp., a Delaware corporation and a direct, wholly-owned subsidiary of CPUH (“Merger Sub I”) and Compute Health LLC, a Delaware limited liability company and a direct, wholly-owned subsidiary of CPUH (“Merger Sub II”), are concurrently entering, as of the date herewith, into a business combination agreement, as may be amended from time to time (the “Business Combination Agreement”), pursuant to which among other things, as part of the same overall transaction, (a) the SPAC will merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the publicly-listed company, (b) promptly, but at least three (3) hours, thereafter Merger Sub I will merge with and into the Target (the “Intermediate Merger”), with the Target surviving as a wholly-owned subsidiary of Pubco and (c) promptly thereafter the Target will merge with and into Merger Sub II (the “Final Merger” and, together with the CPUH Merger and the Intermediate Merger, the “Mergers”), with Merger Sub II surviving as a wholly-owned subsidiary of Pubco, in each case on the terms and conditions set forth therein (such transactions, the “Business Combination”).

 

WHEREAS, in consideration of the Investor’s commitment to, among other things, not redeem 700,000 shares of Class A common stock, par value $0.0001 per share, of the SPAC (the “Class A Common Stock”) beneficially owned by the Investor (the “Investor Shares”, and such non-redemption, the “Non-Redemption”) and, in connection with the closing of the Business Combination (the “Closing”), Pubco agrees to issue to the Investor, concurrently with the cancellation of the Investor Shares pursuant to the Business Combination Agreement, 994,319 shares of fully paid, non-assessable common stock, par value $0.0001 per share, of Pubco (the “Pubco Common Stock” and such shares when held by the Investor, the “New Investor Shares”) (such number of shares being equal to (rounded to the nearest whole share) the number of Investor Shares multiplied by 1.420455), pursuant to the mechanics set forth in Section 2.1(a)(xi) of the Business Combination Agreement (and in each case subject to adjustment to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into shares of Pubco Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Pubco Common Stock pursuant to this Agreement, other than any adjustments specifically contemplated by Section 2.1(a)(xi) of the Business Combination Agreement).

 

WHEREAS, the Investor acknowledges and agrees that none of the SPAC, Pubco or the Target would have entered into and agreed to consummate the transactions contemplated by the Business Combination Agreement without the Investor entering into this Agreement and agreeing to be bound by the agreements, covenants and obligations contained in this Agreement.

 

 

 

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

ARTICLE 1

Agreements of the Investor

 

Section 1.01. Subject to Target and Investor (or their respective designees) entering into a sales agency agreement that is satisfactory to Investor; provided that such sales agency agreement shall be substantially consistent with the memorandum of understanding between Target and Investor (the “Non-Redemption Condition”), Investor hereby irrevocably waives any right that it may have to elect to have the SPAC redeem any Investor Shares and agrees, for the benefit of the SPAC, not to redeem, or to submit a request to the SPAC’s transfer agent to redeem or otherwise exercise any right to redeem, the Investor Shares and to reverse and revoke any prior redemption elections made with respect to the Investor Shares; provided that the SPAC acknowledges and agrees that the Investor may own additional shares of Class A Common Stock in excess of the Investor Shares (the “Other Shares”) and nothing herein shall restrict any rights of the Investor with respect to such Other Shares, including, without limitation, the right to redeem, or to submit a request to the SPAC’s transfer agent to redeem or otherwise exercise any right with respect to such Other Shares. For clarity, unless and until the Non-Redemption Condition is satisfied, this Section 1.01 shall have no effect.

 

Section 1.02. Subject to satisfaction of the Non-Redemption Condition, the Investor hereby agrees, for the benefit of the SPAC, Pubco and the Target, that, during the period commencing on the date hereof until the earlier of (a) the SPAC redemption deadline in connection with the Business Combination and (b) the termination of this Agreement pursuant to its terms, neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, will (i) engage in any hedging transactions or Short Sales (as defined below) with respect to securities of the SPAC which are designed to or which would (either alone or in connection with one or more events or developments (including the satisfaction or waiver of any conditions precedent)) lead to or result in a sale or disposition of the Investor Shares, even if such Investor Shares would be disposed of by a person other than the Investor, (ii) offer for sale, sell (including Short Sales), transfer (including by operation of law), place a lien on, pledge, convert, assign or otherwise dispose of (including by gift, merger, tendering into any tender offer or exchange offer or otherwise) or encumber (collectively, a “Transfer”), or enter into any contract, option, derivative, hedging or other agreement, arrangement, undertaking or understanding (including any profit-sharing arrangement) with respect to, or consent to, a direct or indirect Transfer of any or all of the Investor Shares, unless the recipient of such Investor Shares enters into an agreement in the form of this Agreement with the SPAC, Pubco and the Target with respect to such Investor Shares (including, for clarity, the Investor may Transfer any or all of the Investor Shares to any other entity directly or indirectly controlled by or under common control with Investor so long as such recipient entity delivers to SPAC, Pubco and the Target an executed copy of this Agreement)), (iii) deposit any of the Investor Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxies or powers of attorney with respect to any or all of the Investor Shares, or (iv) take any action that would have the effect of preventing or materially delaying the performance of its obligations hereunder. For purposes of this Section 1.02, “Short Sales” shall include, without limitation, (A) all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, (B) all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage or other similar financing arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and (C) sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

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ARTICLE 2

Agreements of the SPAC,

Pubco and the Target

 

Section 2.01. In consideration of the Investor’s performance of its obligations described herein and upon satisfaction (or, if applicable, waiver) of the conditions set forth in Section 2.04 of this Agreement, in each case effective as of and conditioned on the Closing, Pubco agrees, and the Target agrees to cause Pubco, to issue the New Investor Shares to the Investor immediately following the closing of the CPUH Merger (the “CPUH Merger Closing”). For clarity, if the Non-Redemption Condition is not satisfied as of the CPUH Merger Closing and as a result, Investor does not comply with the obligations set forth in Section 1.01 hereof at the CPUH Merger Closing, then Target and Pubco shall not be required to issue New Investor Shares to Investor (but, for further clarity, if Investor voluntary complies with the obligations set forth in Section 1.01 hereof at the CPUH Merger Closing, even if the Non-Redemption Condition was not satisfied, then Target and Pubco shall cause the New Investor Shares to be issued to Investor pursuant to this Section 2.01).

 

Section 2.02. The SPAC, Pubco and the Target hereby agree that if, between the date hereof and the Closing, the SPAC, Pubco or the Target grant any other person except for RTW Investments LP and an entity affiliated with Fortress, on behalf of certain of their respective managed funds, in connection with such persons’ agreements not to redeem its or their Class A Common Stock or otherwise in connection with such persons’ agreement to acquire additional shares of Pubco in connection with the Business Combination (including any PIPE transaction), which rights are more favorable to such other person than the rights set forth in this Agreement in respect of the Investor, then the SPAC, Pubco and the Target shall grant the Investor the same rights granted to such other person.

 

Section 2.03. After the Closing, if there is not an effective registration statement covering all of the New Investor Shares or the prospectus contained therein is not available for use and Pubco shall determine to prepare and file with the Securities and Exchange Commission a registration statement or offering statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities (other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with Pubco’s share option or other employee benefit plans), then Pubco shall promptly (and in any event within two (2) days) deliver to the Investor a written notice of such determination and, if within two (2) days after the date of the delivery of such notice, the Investor shall so request in writing, Pubco shall include in such registration statement or offering statement all or any part of such New Investor Shares the Investor requests to be registered; provided, however, Pubco shall not be required to register any New Investor Shares pursuant to this Section 2.03 that are eligible for resale pursuant to Rule 144 of the Securities Act without restriction (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or that are the subject of a then-effective registration statement.

 

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Section 2.04. The obligations of Pubco pursuant to Section 2.01 shall be subject to the satisfaction, or valid waiver by Pubco, of the following conditions:

 

(a) the Investor shall have fully complied with, performed and satisfied its obligations set out in Section 1.01, Section 1.02 and Section 4.06 and shall have performed, satisfied and complied in all material respects with all other covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the CPUH Merger Closing;

 

(b) the CPUH Merger Closing shall have occurred; and

 

(c) all representations and warranties of the Investor contained in this Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) at and as of the date of the CPUH Merger Closing (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, which representations and warranties shall be true and correct in all respects) as of such date).

 

ARTICLE 3

Representations and Warranties

 

Section 3.01. Representations and Warranties of the SPAC and Pubco. Each of the SPAC, solely with respect to the representations and warranties set forth below relating to the SPAC, and Pubco, solely with respect to the representations and warranties set forth below relating to Pubco, represents and warrants, severally and not jointly, as of the date hereof to the Investor as follows:

 

(a) The SPAC is duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the SPAC’s corporate powers and have been duly authorized by all necessary corporate actions on the part of the SPAC. This Agreement has been duly executed and delivered by the SPAC and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of the SPAC, enforceable against the SPAC in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).

 

(b) Pubco is duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within Pubco’s corporate powers and have been duly authorized by all necessary corporate actions on the part of Pubco. This Agreement has been duly executed and delivered by Pubco and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of Pubco, enforceable against Pubco in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).

 

(c) The execution and delivery of this Agreement by the SPAC does not, and the performance by the SPAC of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of the SPAC, (ii) result in a violation of any law, rule, regulation, order, judgment or decree or (iii) require any consent or approval that has not been given or other action that has not been taken by any person, in each case to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by the SPAC of its obligations under this Agreement. The SPAC has full right and power to enter into this Agreement.

 

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(d) The execution and delivery of this Agreement by Pubco does not, and the performance by Pubco of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of Pubco, (ii) result in a violation of any law, rule, regulation, order, judgment or decree or (iii) require any consent or approval that has not been given or other action that has not been taken by any person, in each case to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by Pubco of its obligations under this Agreement. Pubco has full right and power to enter into this Agreement..

 

(e) As of the date of this Agreement, the authorized capital stock of the SPAC consists of (i) 300,000,000 shares of Class A Common Stock, (ii) 30,000,000 shares of Class B common stock, par value $0.0001 per share, of the SPAC (the “Class B Common Stock”), and (iii) 3,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Shares”). As of the date of this Agreement, (A) 9,223,194 shares of Class A Common Stock are issued and outstanding, (B) 21,562,500 shares of Class B Common Stock are issued and outstanding, and (C) no Preferred Shares are issued and outstanding. All issued and outstanding shares of Class A Common Stock and shares of Class B Common Stock have been duly authorized and validly issued, are fully paid and are non-assessable. Except as set forth above and pursuant to the other agreements and arrangements referred to therein, and any report filed by the SPAC with the SEC prior to the date hereof (the “SEC Reports”), as of the date hereof, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the SPAC any shares of Class A Common Stock, shares of Class B Common Stock, Preferred Shares or other equity interests in the SPAC, or securities convertible into or exchangeable or exercisable for such equity interests. There are no securities or instruments issued by or to which the SPAC is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the New Investor Shares pursuant to this Agreement, other than as set forth in the SEC Reports and the Royalty Financing Agreement (as defined in the Business Combination Agreement). Except for wholly-owned subsidiaries formed in connection with the Business Combination as contemplated by the Business Combination Agreement, as of the date hereof, the SPAC has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no shareholder agreements, voting trusts or other agreements or understandings to which the SPAC is a party or by which it is bound relating to the voting of any securities of the SPAC, other than as set forth in the SEC Reports.

 

(f) When the New Investor Shares are issued in accordance with the terms of this Agreement and the Business Combination Agreement, the New Investor Shares will have been duly authorized and, when issued and delivered to the Investor in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Agreement, the governing and organizational documents of Pubco or applicable securities laws), and will not have been issued in violation of, or subject to, any preemptive or similar rights created under Pubco’s governing and organizational documents or the laws of the State of Delaware.

 

Section 3.02. Representations and Warranties of The Target. The Target represents and warrants as of the date hereof to the Investor as follows:

 

(a) The Target is duly incorporated, validly existing and in good standing under the laws of the State of Delaware, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Target’s corporate powers and have been duly authorized by all necessary corporate actions on the part of the Target. This Agreement has been duly executed and delivered by the Target and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of the Target, enforceable against the Target in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).

 

(b) The execution and delivery of this Agreement by the Target does not, and the performance by the Target of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of the Target, (ii) result in a violation of any law, rule, regulation, order, judgment or decree or (iii) require any consent or approval that has not been given or other action that has not been taken by any person, in each case to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by the Target of its obligations under this Agreement..

 

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Section 3.03. Representations and Warranties of The Investor. The Investor represents and warrants as of the date hereof to the SPAC, Pubco and the Target as follows:

 

(a) The Investor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation or incorporation, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Investor’s powers and have been duly authorized by all necessary actions on the part of the Investor. This Agreement has been duly executed and delivered by the Investor and, assuming due authorization, execution and delivery by the SPAC and Pubco, this Agreement constitutes a legally valid and binding obligation of the Investor, enforceable against the Investor in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies).

 

(b) The execution and delivery of this Agreement by the Investor does not, and the performance by the Investor of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of the Investor, (ii) result in a violation of any law, rule, regulation, order, judgment or decree or (iii) require any consent or approval that has not been given or other action that has not been taken by any person, in each case to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by the Investor of its obligations under this Agreement.

 

(c) The Investor (i) is an “accredited investor” (as such term is defined under Rule 501(a) of Regulation D promulgated under the Securities Act), (ii) is acquiring any New Investor Shares that may be issued to the Investor pursuant to this Agreement only for its own account and not for the account of others, and (iii) is not acquiring any New Investor Shares that may be issued to the Investor pursuant to this Agreement with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. The Investor is not an entity formed for the specific purpose of acquiring any New Investor Shares that may be issued to the Investor pursuant to this Agreement. The Investor is a sophisticated institutional investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities.

 

(d) The Investor understands that any New Investor Shares that may be issued to the Investor pursuant to this Agreement are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the New Investor Shares have not been registered under the Securities Act. The Investor understands that the New Investor Shares may not be offered, resold, transferred, pledged or otherwise disposed of by the Investor except (i) pursuant to an effective registration statement under the Securities Act, (ii) to the extent the Investor has delivered to Pubco (if requested by Pubco) an opinion of counsel, in a form reasonably acceptable to Pubco, to the effect that such New Investor Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (iii) to the extent that such Investor provides Pubco with reasonable assurance (which shall not include a legal opinion) that such New Investor Shares can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) or (iv) otherwise pursuant to an applicable exemption from the registration requirements of the Securities Act, and in accordance with any applicable securities laws of the applicable states and other jurisdictions of the United States, and that any certificates or book-entry records representing the New Investor Shares shall contain a restrictive legend to such effect. The Investor acknowledges and agrees that the New Investor Shares will be subject to these securities law transfer restrictions and, as a result of these transfer restrictions, the Investor may not be able to readily resell the New Investor Shares and may be required to bear the financial risk of an investment in the New Investor Shares for an indefinite period of time. The Investor understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the New Investor Shares.

 

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(e) In making its decision to invest in the New Investor Shares, the Investor has relied solely upon independent investigation made by the Investor and the SPAC’s and Pubco’s representations, warranties and covenants contained herein. The Investor has not relied on any statements or other information provided by anyone other than the SPAC concerning the SPAC, the Business Combination, the New Investor Shares or the offer of the New Investor Shares. The Investor acknowledges and agrees that the Investor has received such information as the Investor deems necessary in order to make an investment decision with respect to the New Investor Shares, including with respect to the SPAC, Pubco and the Business Combination, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Investor’s investment in the New Investor Shares. The Investor represents and agrees that the Investor and the Investor’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Investor and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the New Investor Shares. Without limiting the generality of the foregoing, the Investor acknowledges that it has had an opportunity to review the SEC Reports.

 

(f) Investor became aware of the offering of the New Investor Shares solely by means of direct contact between the Investor, the SPAC, Pubco or their representatives or affiliates. The Investor did not become aware of the offering of the New Investor Shares, nor were the New Investor Shares offered to the Investor, by any other means. The Investor acknowledges that, to its knowledge, New Investor Shares (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under the Securities Act or any state securities laws.

 

(g) Investor acknowledges that it is aware that there are substantial risks incident to the ownership of the New Investor Shares. The Investor has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the New Investor Shares, and the Investor has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as the Investor has considered necessary to make an informed investment decision. The Investor is not relying on any statements or representations of the SPAC, Pubco or any of their respective agents for legal, tax or investment advice with respect to this Agreement or the transactions contemplated by the Agreement.

 

(h) The Investor has fully considered the risks of an investment in the New Investor Shares and determined that the New Investor Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment in the New Investor Shares. The Investor acknowledges specifically that a possibility of total loss exists.

 

(i) The Investor understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the New Investor Shares or made any findings or determination as to the fairness of this investment.

 

(j) Neither the Investor nor any of its officers, directors or, to Investor’s knowledge, managers, managing members, general partners, affiliates under common control or any other person acting in a similar capacity or carrying out a similar function is currently (i) a person (including individual or entity) that is the subject to economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or His Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), (ii) a person or entity listed on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC, or any other any Sanctions-related list of sanctioned persons maintained by OFAC, the Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state, or the United Kingdom (collectively, “Sanctions Lists”), (iii) organized, incorporated, established, located, resident or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, Afghanistan, the Crimea, the so-called Donetsk People’s Republic, or the so-called Luhansk People’s Republic regions of Ukraine; (iv) directly or indirectly 50% or more owned or controlled 50% or more by, or on behalf of, any such person or persons described in any of the foregoing clauses (i) through (iv); or (v) a “foreign shell bank” or providing banking services indirectly to a “foreign shell bank”, as defined under the USA PATRIOT Act of 2001 (Pub. L. 107-56) (collectively, (i) through (v), a “Prohibited Investor”). Investor represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with the anti-money laundering-related laws administered and enforced by the governments of the United States, the United Kingdom and member states of the European Union. Investor also represents that it maintains policies and procedures reasonably designed to ensure compliance with Sanctions.

 

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(k) No broker or finder has acted on behalf of the Investor in such a way as to create any liability on the SPAC or Pubco in connection with this Agreement.

 

(l) The Investor is not entering into the transactions contemplated by this Agreement to create actual or apparent trading activity in shares of Class A Common Stock (or any security convertible into or exchangeable for shares of Class A Common Stock) or to raise or depress or otherwise manipulate the price of the shares of Class A Common Stock (or any security convertible into or exchangeable for shares of Class A Common Stock) or otherwise in violation of the Exchange Act. The Investor has not entered into or altered, and agrees that the Investor will not enter into or alter, any corresponding or hedging transaction or position with respect to the Class A Common Stock.

 

ARTICLE 4

Miscellaneous

 

Section 4.01. Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earliest to occur of (a) the termination, in accordance with its terms, of the Business Combination Agreement or material amendment (including, for clarity, any amendment that changes the exchange ratio or otherwise alters the amount or form of consideration payable in the transaction, or which would reasonably be expected to adversely affect the benefits that Investor (in its capacity as such) would reasonably expect to receive under this Agreement), in accordance with its terms, of the Business Combination Agreement, (b) the mutual written consent of the parties hereto, (c) the Termination Date in the Business Combination Agreement as in effect on the date hereof or, if earlier, August 7, 2023, in each case if the Closing has not occurred by such date, and (d) the Closing. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any person in respect hereof or the transactions contemplated hereby; provided that, notwithstanding the foregoing or anything to the contrary in this Agreement, the termination of this Agreement pursuant to Section 4.01(a) shall not affect any liability on the part of any party for an intentional breach of this Agreement. This Article 4 shall survive the termination of this Agreement.

 

Section 4.02. Trust Account Waiver. The Investor acknowledges that the SPAC has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (“IPO”) and certain proceeds of the private placement (including interest accrued from time to time thereon) for the benefit of its public stockholders and certain other parties (including the underwriters of the IPO). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Investor hereby agrees (on its own behalf and on behalf of its related parties) that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and it shall not make any claim against the Trust Account, regardless of whether such claim arises as a result of, in connection with or relating in any way to this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”); provided that the Released Claims shall not include any rights or claims of the Investor or any of its related parties as a shareholder of the SPAC to the extent related to or arising from any shares of capital stock of the SPAC other than the Investor Shares. The Investor hereby irrevocably waives (on its own behalf and on behalf of its related parties) any Released Claims that it may have against the Trust Account now or in the future as a result of, or arising out of, this Agreement and will not seek recourse against the Trust Account with respect to the Released Claims. In the event Investor has any claim or similar claim against SPAC under this Agreement or otherwise, Investor shall pursue such Claim solely against SPAC and its assets outside the Trust Account (it being understood, for the avoidance of doubt, that following release of any monies or other assets from the Trust Account to SPAC in accordance with the terms of the Trust Account, such monies or other assets held by SPAC are “assets outside of the Trust Account”) and not against the Trust Account or any monies or other assets in the Trust Account. Nothing in this Agreement shall amend, limit, modify, prohibit or otherwise affect any rights of Investor to pursue any claims against or seek recourse from SPAC or any other person or any of SPAC’s affiliates other than with respect to monies or assets in the Trust Account, or Investor’s ability to seek specific performance, injunctive or other equitable relief.

 

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Section 4.03. Public Disclosure. The SPAC shall, by 9:00 a.m., New York City time, by the earlier of (a) four (4) Business Days following the date of this Agreement and (b) the date that SPAC publicly announces the execution of the Business Combination Agreement, file with the SEC a Current Report on Form 8-K (the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the Investor agrees that the SPAC and Pubco shall have the right to publicly disclose the name of the Investor, the Investor’s beneficial ownership of the New Investor Shares and the nature of the Investor’s commitments, arrangements and understandings under and relating to this Agreement in any Form 8-K filed by the SPAC with the SEC in connection with the execution and delivery of this Agreement, and any proxy statement, prospectus or registration statement filed or amended on or after the date of this Agreement, to the extent such disclosure is required by law; provided that, prior to making any such required public disclosure, the SPAC and Pubco shall (a) provide the Investor with three (3) Business Days to review the portion of the public disclosure that refers directly to the Investor’s commitment pursuant to this Agreement and any other information or disclosure reasonably related to Investor, this Agreement or other agreements the Investor may have with SPAC, Pubco or Target, and (b) incorporate any reasonable comments received from the Investor or its representatives within such three (3) Business Day period as to such public disclosures referring directly to the Investor’s commitment pursuant to this Agreement (it being understood, however, that with respect to the initial public disclosure as to the existence of this Agreement, such three (3) Business Day period may be reduced by the SPAC to a one (1) Business Day period). Notwithstanding anything in this Agreement to the contrary, neither the SPAC nor Pubco shall publicly disclose or include the name of the Investor, its investment adviser or any of their respective affiliates in any press release or other marketing materials without the prior written consent of the Investor. The Investor shall use commercially reasonable efforts to promptly provide any information reasonably requested by the SPAC or Pubco for any regulatory application or filing made or approval sought in connection with the Business Combination (including filings with the SEC).

 

Section 4.04. Governing Law. This Agreement, the rights and duties of the parties hereto, and any disputes (whether in contract, tort or statute) arising out of, under or in connection with this Agreement will be governed by and construed and enforced in accordance with the Laws of the State of Delaware, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of the laws of another jurisdiction. The parties agree that all disputes, legal actions, suits and proceedings arising out of or relating to this Agreement must be brought exclusively in the United States District Court for the Southern District of New York, the Supreme Court of the State of New York and the federal courts of the United States of America located in the State of New York, in each case sitting in the Borough of Manhattan (collectively the “Designated Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit or proceeding with respect to this Agreement may be brought in any other forum. Each party hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the parties also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 4.12 of this Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the parties have submitted to jurisdiction as set forth above.

 

Section 4.05. Waiver of Jury Trial. To the extent not prohibited by applicable law that cannot be waived, each of the parties hereto irrevocably waives any right it may have to trial by jury in respect of any litigation based on, arising out of, under or in connection with this Agreement or any course of conduct, course of dealing, verbal or written statement or action of any party hereto or thereto, in each case, whether now existing or hereafter arising, and whether in contract, tort, statute, equity or otherwise. Each party hereby further agrees and consents that any such litigation shall be decided by court trial without a jury and that the parties to this Agreement may file a copy of this Agreement with any court as written evidence of the consent of the parties to the waiver of their right to trial by jury.

 

9

 

 

Section 4.06. Form W-9. The Investor shall, on or prior to the Closing, execute and deliver to the SPAC a completed IRS Form W-9.

 

Section 4.07. Reserved.

 

Section 4.08. Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of the non-assigning parties hereto.

 

Section 4.09. Specific Performance. The parties agree that irreparable damage may occur in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached. It is accordingly agreed that monetary damages may not be an adequate remedy for such breach and the non-breaching party shall be entitled to seek injunctive relief, in addition to any other remedy that such party may have in law or in equity, and to enforce specifically the terms and provisions of this Agreement in the Designated Courts.

 

Section 4.10. Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified, except upon the execution and delivery of a written agreement executed by the parties hereto.

 

Section 4.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

 

Section 4.12. Notices. All notices, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been duly given (a) if personally delivered, on the date of delivery; (b) if delivered by express courier service of national standing for next day delivery (with charges prepaid), on the Business Day following the date of delivery to such courier service; (c) if delivered by telecopy (with confirmation of delivery), on the date of transmission if on a Business Day before 5:00 p.m. local time of the recipient party (otherwise on the next succeeding Business Day); (d) if delivered by electronic mail, on the date of transmission if on a Business Day before 5:00 p.m. local time of the business address of the recipient party (otherwise on the next succeeding Business Day); and (e) if deposited in the United States mail, first-class postage prepaid, on the date of delivery, in each case to the appropriate addresses set forth below (or to such other addresses as a party may designate by notice to the other parties in accordance with this Section 4.12):

 

If to the SPAC:

 

Compute Health Acquisition Corp.

1100 North Market Street

4th Floor

Wilmington, DE 19890

Attention: Jean Nehmé

Email: nehmejean3@gmail.com

 

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

 

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, New York 10001

Attn:Howard Ellin

Gregg Noel

Richard Witzel

Email:howard.ellin@skadden.com

gregg.noel@skadden.com

richard.witzel@skadden.com

 

If to Pubco:

 

Allurion Technologies Holdings, Inc.

11 Huron Drive

Natick, MA 01760

Attention: Chris Geberth - Chief Financial Officer

Email: cgeberth@allurion.com

 

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

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Danielle M. Lauzon and Paul R. Rosie

E-mail: dlauzon@goodwinlaw.com, prosie@goodwinlaw.com

 

If to the Target:

 

Allurion Technologies, Inc.

11 Huron Drive

Natick, MA 01760

Attention: Chris Geberth - Chief Financial Officer

Email: cgeberth@allurion.com

 

11

 

 

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

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Danielle M. Lauzon and Paul R. Rosie

E-mail: dlauzon@goodwinlaw.com, prosie@goodwinlaw.com

 

If to the Investor:

 

Medtronic, Inc.

Operational Headquarters

710 Medtronic Parkway

Minneapolis, MN 55432-5604

Attention: Ron E. Garber, Senior Legal Director, Business Development

Email: ron.e.garber@medtronic.com

 

and

 

Attention: Christopher M. Cleary, Senior Vice President,

Corporate Development

Email: chris.cleary@medtronic.com

 

with a copy to:

 

Wilmer Cutler Pickering Hale and Dorr LLP

7 World Trade Center

250 Greenwich Street

New York, New York 10007

Attention: Christopher D. Barnstable-Brown

Email: chris.barnstable-brown@wilmerhale.com

 

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Section 4.13. Counterparts. This Agreement may be executed in two or more counterparts (any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument, and shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record- keeping system to the fullest extent permitted by applicable law.

 

Section 4.14. Entire Agreement. This Agreement and the agreements referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements or representations by or among the parties hereto to the extent that they relate in any way to the subject matter hereof.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have each caused this Non-Redemption Agreement to be duly executed on their behalf as of the date first written above.

 

  SPAC
       
  COMPUTE HEALTH ACQUISITION CORP.
       
  By: /s/ Joshua Fink
    Name: Joshua Fink
  Title: Co-Chief Executive Officer
       
  PUBCO
       
  ALLURION TECHNOLOGIES HOLDINGS, INC.
       
  By: /s/ Shantanu Gaur
    Name:  Shantanu Gaur
  Title: Chief Executive Officer
       
  TARGET
       
  ALLURION TECHNOLOGIES, INC.
       
  By: /s/ Shantanu Gaur
    Name: Shantanu Gaur
  Title: Chief Executive Officer

 

[Signature Page to Non-Redemption Agreement]

 

 

 

 

  INVESTOR
     
  MEDTRONIC, INC.
                
  By: /s/ Christopher M. Cleary
  Name:  Christopher M. Cleary
  Title: Sr. Vice President, Corporate Development

 

[Signature Page to Non-Redemption Agreement]

 

 

 

 

Exhibit 10.4

 

Exhibit A

 

INVESTOR RIGHTS AND LOCK-UP AGREEMENT

 

THIS INVESTOR RIGHTS AND LOCK-UP AGREEMENT (this “Agreement”) is entered into as of [●], 2023, by and among Allurion Technologies, Inc. (f/k/a Allurion Technologies Holdings, Inc.), a Delaware corporation (the “Company”), and the parties listed as Investors on Schedule I hereto (each, including any person or entity who hereinafter becomes a party to this Agreement pursuant to Section 8.2, an “Investor” and collectively, the “Investors”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Business Combination Agreement (as defined below).

 

WHEREAS, Compute Health Acquisition Corp., a Delaware corporation and predecessor-by-merger to the Company (“CPUH”), Compute Health Corp., a Delaware corporation and a then-direct, wholly-owned subsidiary of CPUH (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company and a then-direct, wholly-owned subsidiary of CPUH (“Merger Sub II”), the Company and Allurion Technologies, Inc. (predecessor by merger to Allurion Technologies, LLC), a Delaware corporation (“Allurion”), have consummated the transactions contemplated by that certain Business Combination Agreement, dated as of February 9, 2023 (as amended or supplemented from time to time, the “Business Combination Agreement”), pursuant to which, among other things, as part of the same overall transaction, (a) CPUH merged with and into the Company (the “CPUH Merger”), with the Company surviving as the publicly-listed company, (b) promptly, but at least three (3) hours, thereafter Merger Sub I merged with and into Allurion (the “Intermediate Merger”), with Allurion surviving as a wholly-owned subsidiary of the Company and (c) promptly thereafter Allurion merged with and into Merger Sub II, with Merger Sub II surviving as a wholly-owned subsidiary of the Company (collectively with the CPUH Merger and the Intermediate Merger, the “Mergers”), in each case on the terms and conditions set forth therein;

 

WHEREAS, CPUH, Compute Health Sponsor LLC, a Delaware limited liability company (“Sponsor”), Osama Alswailem, Hani Barhoush, Joshua Fink, Michael Harsh, Omar Ishrak, Jean Nehmé and Gwendolyn A. Watanabe (such persons, collectively with the Sponsor, the “CPUH Initial Stockholders”) and any person or entity who hereafter became or becomes a party to the Prior CPUH Agreement (as defined below) pursuant to Section 5.2 thereof are parties to that certain Registration Rights Agreement, dated February 4, 2021 (the “Prior CPUH Agreement”);

 

WHEREAS, Allurion is party to that certain Fourth Amended and Restated Investors’ Rights Agreement, dated as of July 23, 2021, by and among Allurion and certain investors listed therein (together with the Prior CPUH Agreement, the “Prior Agreements”);

 

WHEREAS, as of prior to the execution of this Agreement and prior to the CPUH Merger Closing, the CPUH Initial Stockholders collectively held 21,562,500 shares of Class B Common Stock of CPUH (collectively, the “Founder Shares”);

 

WHEREAS, immediately prior to the CPUH Merger Closing, the Founder Shares converted into Class A Common Stock in connection with the Founder Share Conversion and the Independent Director Share Conversion (each as defined in the Sponsor Support Agreement) and, in the CPUH Merger, such Class A Common Stock was cancelled in exchange for the right to receive Pubco Common Stock;

 

 

 

 

WHEREAS, the Investors of Allurion set forth on Schedule I under the heading Allurion Investors and party hereto (“Allurion Investors”) held, immediately prior to the Final Merger Closing, (a) shares of common stock, par value $0.0001 per share, of Allurion (“Allurion Common Stock”); (b) shares designated as “Series A Preferred Stock”, par value $0.0001 per share (“Allurion Series A Preferred Stock”); (c) shares designated as “Series A-1 Preferred Stock”, par value $0.0001 per share (“Allurion Series A-1 Preferred Stock”); (d) shares designated as “Series B Preferred Stock”, par value $0.0001 per share (“Allurion Series B Preferred Stock”); (e) shares designated as “Series C Preferred Stock”, par value $0.0001 per share (“Allurion Series C Preferred Stock”) (f) shares designated as “Series D-1 Preferred Stock”, par value $0.0001 per share (“Allurion Series D-1 Preferred Stock”); (g) shares designated as “Series D-2 Preferred Stock”, par value $0.0001 per share (“Allurion Series D-2 Preferred Stock”) and (h) shares designated as “Series D-3 Preferred Stock”, par value $0.0001 per share (collectively with Allurion Common Stock, Allurion Series A Preferred Stock, Allurion Series A-1 Preferred Stock, Allurion Series B Preferred Stock, Allurion Series C Preferred Stock, Allurion Series D-1 Preferred Stock and Allurion Series D-2 Preferred Stock, the “Allurion Shares”), as applicable;

 

WHEREAS, the Allurion Shares were exchanged for Pubco Common Stock on or about the date hereof, pursuant to the Business Combination Agreement;

 

WHEREAS, certain Investors have purchased shares of Pubco Common Stock in the PIPE Financing in connection with the consummation of the Mergers; and

 

WHEREAS, the Company and Allurion desire to terminate the Prior Agreements, effective as of the Final Merger Closing, to provide for the terms and conditions included herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.DEFINITIONS. The following capitalized terms used herein have the following meanings:

 

Addendum Agreement” is defined in Section 8.2.

 

Adverse Disclosure” mean public disclosure of any material nonpublic information which, in the good faith reasonable determination of the Board, (i) would be required to be made in any Registration Statement filed with the Commission by the Company so that such Registration Statement, from and after its effective date, does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement; and (iii) the Company has a bona fide business purpose for not disclosing publicly and would reasonably be likely to be detrimental to the Company and its subsidiaries.

 

2

 

 

Agreement” is defined in the preamble to this Agreement.

 

Allurion” is defined in the recitals to this Agreement.

 

Allurion Common Stock” is defined in the recitals to this Agreement.

 

Allurion Investor Released Shares” means the number of shares of Pubco Common Stock held by a Participating Allurion Investor set forth opposite his, her or its name on Schedule II to this Agreement under the heading “Allurion Investor Released Shares”.

 

Allurion Investors” is defined in the recitals to this Agreement.

 

Allurion Series A Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Series A-1 Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Series B Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Series C Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Series D-1 Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Series D-2 Preferred Stock” is defined in the recitals to this Agreement.

 

Allurion Shares” is defined in the recitals to this Agreement.

 

Block Trade” means any non-marketed underwritten offering taking the form of a block trade to financial institutions, QIBs or Institutional Accredited Investors, bought deals, over-night deals or similar transactions that do not include “road show” presentations to potential investors requiring marketing effort from management over multiple days.

 

Board” is defined in Section 3.1.1.

 

Business Combination Agreement” is defined in the preamble to this Agreement.

 

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

 

Class A Common Stock” is defined in the Business Combination Agreement.

 

Closing Date” is defined in the Business Combination Agreement.

 

Commission” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.

 

Company” is defined in the preamble to this Agreement.

 

CPUH” is defined in the preamble to this Agreement.

 

3

 

 

CPUH Initial Stockholders” is defined in the preamble to this Agreement.

 

CPUH Investors” shall mean the Investors listed on Schedule I hereto under the heading “CPUH Investors” and party hereto, together with any of their respective Permitted Transferees.

 

CPUH Merger” is defined in the recitals to this Agreement.

 

Company Independent Nominees” is defined in Section 7.1.

 

Demand Registration” is defined in Section 2.2.1.

 

Demanding Holder” is defined in Section 2.2.1.

 

DTC” means the Depository Trust Company.

 

DWAC” is defined in Section 3.5.2.

 

Effectiveness Period” is defined in Section 3.1.3.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.

 

Form 10 Disclosure Filing Date” means the date on which the Company shall file with the Commission a Current Report on Form 8-K that includes current “Form 10 information” (within the meaning of Rule 144) reflecting the Company’s status as an entity that is no longer an issuer described in paragraph (i)(1)(i) of Rule 144.

 

Form S-1” means a Registration Statement on Form S-1.

 

Form S-3” means a Registration Statement on Form S-3 or any similar short-form registration that may be available at such time.

 

Founder Shares” is defined in the recitals to this Agreement.

 

Gaur Director Nomination Number” means one (1) Gaur Nominee so long as Shantanu Gaur, his Affiliates and any trust, partnership or limited liability company for the benefit of, or the ownership interests of which are owned wholly by, Shantanu Gaur or his immediate family beneficially own in the aggregate such number of shares of Pubco Common Stock equal to at least the Gaur Minimum Ownership Threshold.

 

Gaur Independent Nominee” is defined in Section 7.1.

 

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Gaur Minimum Ownership Threshold” means [●]1 shares of Pubco Common Stock (subject to adjustment for stock splits, reclassifications, combinations, stock dividends and similar adjustments).

 

Gaur Nominee” is defined in Section 7.1.

 

Indemnified Party” is defined in Section 4.3.

 

Indemnifying Party” is defined in Section 4.3.

 

Independent Director” is defined in Section 7.1.

 

Initiating Holder” is defined in Section 2.1.6.

 

Institutional Accredited Investor” means an institutional “accredited” investor as defined in Rule 501(a) of Regulation D under the Securities Act.

 

Intermediate Merger” is defined in the recitals to this Agreement.

 

Investor” is defined in the preamble to this Agreement.

 

Investor Indemnified Party” is defined in Section 4.1.

 

Lock-up Release Date” means, for purposes of this Agreement (I) (i) the eighteen (18) month anniversary of the Closing Date as indicated under the heading on Schedule II named “18-month lock-up,” with respect to those Investors listed under such heading, or (ii) the twelve (12) month anniversary of the Closing Date as indicated under the heading “12-month lock-up,” with respect to those Investors listed under such headings, or (II) the date upon completion of a liquidation, merger, stock exchange, reorganization or other similar transaction that results in all of the public stockholders of the Company having the right to exchange their Pubco Common Stock for cash, securities or other property.

 

Maximum Number of Shares” is defined in Section 2.2.4.

 

Merger Sub I” is defined in the recitals to this Agreement.

 

Merger Sub II” is defined in the recitals to this Agreement.

 

Mergers” is defined in the recitals to this Agreement.

 

New Registration Statement” is defined in Section 2.1.4.

 

New Securities” means all shares of Pubco Common Stock issued or issuable in connection with the Mergers, including shares issuable upon exercise of any Assumed Warrant.

 

 

1Note to Draft: To equal 50% of the shares of Pubco Common Stock held by Shantanu Gaur immediately following Closing.

 

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Participating Allurion Investor” is defined in Section 6.1.

 

Permitted Transferee” means (i) the members of an Investor’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse, the siblings of such person and his or her spouse, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings); (ii) any trust or family limited liability company or partnership for the direct or indirect benefit of an Investor or the immediate family of an Investor; (iii) if an Investor is a trust, to the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust; (iv) any officer, director, general partner, limited partner, stockholder, member, or owner of similar equity interests in an Investor; or (v) any affiliate of an Investor.

 

Piggy-Back Registration” is defined in Section 2.3.1.

 

Prior Agreements” is defined in the preamble to this Agreement.

 

Prior CPUH Agreement” is defined in the preamble to this Agreement.

 

Pro Rata” is defined in Section 2.2.4.

 

Pubco Common Stock” is defined in the Business Combination Agreement.

 

QIB” means “qualified institutional buyer” as defined in Rule 144A under the Securities Act.

 

Registrable Securities” means (i) New Securities and shares of Pubco Common Stock issued in the PIPE Financing, and (ii) all shares of Pubco Common Stock issued to any Investor with respect to such securities referenced in clause (i) by way of any share split, share dividend or other distribution, recapitalization, reorganization, share exchange, share reconstruction, amalgamation, contractual control arrangement or similar event. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; or (c) such securities shall have ceased to be outstanding.

 

Registration” means a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

 

Registration Statement” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).

 

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Remus Capital” means Remus Group Management, LLC and any Affiliate of the foregoing that holds shares of Pubco Common Stock or to whom the foregoing has transferred shares of Pubco Common Stock.

 

Remus Director Nomination Number” means one (1) Remus Nominee so long as Remus Capital beneficially owns in the aggregate such number of shares of Pubco Common Stock equal to at least the Remus Minimum Ownership Threshold.

 

Remus Independent Nominee” is defined in Section 7.1.

 

Remus Minimum Ownership Threshold” means [●]2 shares of Pubco Common Stock (subject to adjustment for stock splits, reclassifications, combinations, stock dividends and similar adjustments).

 

Remus Nominee” is defined in Section 7.1.

 

Resale Shelf Registration Statement” is defined in Section 2.1.1.

 

RTW Designated Director” is defined in Section 7.1.

 

RTW Designation Condition” means until the later of (x) such time as all Obligations (as defined in the RTW Side Letter) under the Royalty Financing Agreement (as defined in the RTW Side Letter) have been paid by Allurion or (y) such time as all Obligations (as defined in any Additional Revenue Interest Financing Agreement, as defined in the RTW Side Letter) under the Additional Revenue Interest Financing Agreement have been paid by Allurion.

 

RTW Master” has the meaning set forth in the definition of RTW Side Letter.

 

RTW Innovation” has the meaning set forth in the definition of RTW Side Letter.

 

RTW Side Letter” means that certain letter agreement, dated February 9, 2023, by and among CPUH, the Company, Merger Sub II, Allurion, RTW Master Fund, Ltd., an Exempted Company incorporated in the Cayman Islands with limited liability (“RTW Master”), RTW Innovation Master Fund, Ltd., an Exempted Company incorporated in the Cayman Islands with limited liability (“RTW Innovation”), and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (“RTW Venture”, and collectively with RTW Master and RTW Innovation, “RTW”).

 

 

2Note to Draft: To equal 50% of the shares of Pubco Common Stock held by Remus Capital immediately following Closing.

 

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RTW Venture” has the meaning set forth in the definition of RTW Side Letter.

 

RTW” has the meaning set forth in the definition of RTW Side Letter.

 

SEC Guidance” is defined in Section 2.1.4.

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.

 

Sponsor” is defined in the recitals to this Agreement.

 

Sponsor Director Nomination Number” means one (1) Sponsor Nominee so long as Sponsor beneficially owns in the aggregate such number of shares of Pubco Common Stock equal to at least the Sponsor Minimum Ownership Threshold.

 

Sponsor Minimum Ownership Threshold” means [●]3 shares of Pubco Common Stock (subject to adjustment for stock splits, reclassifications, combinations, stock dividends and similar adjustments).

 

Sponsor Nominee” is defined in Section 7.1.

 

Sponsor Released Shares” means the number of shares of Pubco Common Stock held by Sponsor set forth opposite its name on Schedule II to this Agreement under the heading “Sponsor Released Shares”.

 

Shelf Participant” is defined in Section 2.1.6.

 

Takedown Demand” is defined in Section 2.1.6.

 

Transfer” means to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, with respect to any shares of Pubco Common Stock, (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 shares of Pubco Common Stock, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction, including the filing of a registration statement specified in clause (i) or (ii), other than a Registration Statement filed pursuant to this Agreement. Notwithstanding the foregoing, a Transfer shall not be deemed to include any transfer for no consideration if the donee, trustee, heir or other transferee has agreed in writing to be bound by the same terms under this Agreement to the extent and for the duration that such terms remain in effect at the time of the Transfer.

 

 

3Note to Draft: To equal 50% of the shares of Pubco Common Stock held by the Sponsor immediately following Closing.

 

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Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.

 

Underwritten Demand Registration” means an underwritten public offering of Registrable Securities pursuant to a Demand Registration, as amended or supplemented, that is a fully marketed underwritten offering that requires Company management to participate in “road show” presentations to potential investors requiring substantial marketing effort from management over multiple days, the issuance of a “comfort letter” by the Company’s auditors, and the issuance of legal opinions by the Company’s legal counsel.

 

Underwritten Takedown” means an underwritten public offering of Registrable Securities pursuant to the Resale Shelf Registration Statement, as amended or supplemented, that requires the issuance of a “comfort letter” by the Company’s auditors and the issuance of legal opinions by the Company’s legal counsel.

 

Unrestricted Conditions” is defined in Section 3.5.2.

 

2.REGISTRATION RIGHTS.

 

2.1 Resale Shelf Registration Rights.

 

2.1.1 Registration Statement Covering Resale of Registrable Securities. Provided compliance by the Investors with Section 3.4, the Company shall prepare and file or cause to be prepared and filed with the Commission, no later than forty-five (45) calendar days following the Closing Date, a Registration Statement on Form S-3 or its successor form, or, if the Company is ineligible to use Form S-3, a Registration Statement on Form S-1, for an offering to be made on a continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by Investors of all of the Registrable Securities then held by such Investors that are not covered by an effective resale registration statement (the “Resale Shelf Registration Statement”). The Company shall use commercially reasonable efforts to cause the Resale Shelf Registration Statement to be declared effective as soon as possible after filing, and in no event later than ninety (90) days after the Closing Date, and once effective, to keep the Resale Shelf Registration Statement continuously effective under the Securities Act at all times until the expiration of the Effectiveness Period (as defined below). In the event that the Company files a Form S-1 pursuant to this Section 2.1, the Company shall use its commercially reasonable efforts to convert the Form S-1 to a Form S-3 promptly after the Company is eligible to use Form S-3. The Resale Shelf Registration Statement shall provide that the Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, the Investors, including the registration of the distribution to its stockholders, partners, members or other affiliates. Without limiting the foregoing, subject to any comments from the Commission, each Registration Statement filed pursuant to this Section 2.1.1 shall include a “plan of distribution” approved by Allurion Investors holding a majority of the Registrable Securities.

 

2.1.2 Notification and Distribution of Materials. The Company shall promptly notify the Investors in writing of the effectiveness of the Resale Shelf Registration Statement and shall furnish to them, without charge, such number of copies of the Resale Shelf Registration Statement (including any amendments, supplements and exhibits), the prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Investors may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf Registration Statement.

 

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2.1.3 Amendments and Supplements. Subject to the provisions of Section 2.1.1 above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to the Resale Shelf Registration Statement and prospectus used in connection therewith as may be necessary to keep the Resale Shelf Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities during the Effectiveness Period (as defined below).

 

2.1.4 Reduction of Shelf Offering. Notwithstanding the registration obligations set forth in this Section 2.1, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of the holders thereof and use its commercially reasonable efforts to file an amendment or amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file a new registration statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-1, Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”), including, without limitation, Compliance and Disclosure Interpretation 612.09. Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced on a Pro Rata basis, subject to a determination by the Commission that certain Investors must be reduced first based on the number of Registrable Securities held by such Investors. In the event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1, Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement. If the Company shall not be able to register for resale all of the Registrable Securities on the Resale Shelf Registration Statement within three (3) months following the date of the Company’s receipt of the Commission’s Notice, then, until such Resale Shelf Registration Statement is effective, each of the Allurion Investors shall be entitled to demand registration rights pursuant to Section 2.2 as long as the demand request is a proposal to sell Registrable Securities with an aggregate market price at the time of request of not less than $5,000,000 (the “Shelf Demand Right”). Shelf Demand Rights shall not be counted as Demand Registrations under Section 2.2.

 

No Investor shall be named as an “underwriter” in any Registration Statement filed pursuant to this Section 2 without the Investor’s prior written consent; provided that if the Commission requests that an Investor be identified as a statutory underwriter in the Registration Statement, then such Investor will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register such Investor’s Registrable Securities shall be deemed satisfied or (ii) be included as such in the Registration Statement. Each Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided to (and shall be subject to the approval, which shall not be unreasonably withheld or delayed, of) the Investors prior to its filing with, or other submission to, the Commission.

 

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2.1.5 Notice of Certain Events. The Company shall promptly notify the Investors in writing of any request by the Commission for any amendment or supplement to, or additional information in connection with, the Resale Shelf Registration Statement required to be prepared and filed hereunder (or prospectus relating thereto). The Company shall promptly notify each Investor, or their representatives, in writing of the filing of the Resale Shelf Registration Statement or any prospectus, amendment or supplement related thereto or any post-effective amendment to the Resale Shelf Registration Statement and the effectiveness of any post-effective amendment.

 

2.1.6 Underwritten Takedown.

 

(a) If the Company shall receive a request (a “Takedown Demand”) from the (i) holders of Registrable Securities with an estimated market value of at least $5,000,000 or (ii) the holders of Registrable Securities registered under the Resale Shelf Registration Statement that own in the aggregate at least 5% of the outstanding Pubco Common Stock requesting a registration of at least $5,000,000 (either, an “Initiating Holder”) that the Company effect an Underwritten Takedown of all or any portion of the requesting holder’s Registrable Securities covered under the Resale Shelf Registration Statement, then the Company shall give (x) in connection with any non-marketed underwritten takedown offering (other than a Block Trade), at least two (2) Business Days’ notice of such Takedown Demand to each holder of Registrable Securities (other than the Initiating Holder) that is a participant in the Resale Shelf Registration Statement (“Shelf Participant”), (y) in connection with any Block Trade initiated, notice of such Underwritten Takedown to each holder of Registrable Securities (other than the Initiating Holder(s)) that is a Shelf Participant no later than noon Eastern time on the Business Day prior to the requested Underwritten Takedown and (z) in connection with any marketed Underwritten Takedown, at least five (5) Business Days’ notice of such Underwritten Takedown to each holder of Registrable Securities (other than the Initiating Holder(s)) that is a Shelf Participant. In connection with (x) any non-marketed Underwritten Takedown initiated and (y) any marketed Underwritten Takedown, if any Shelf Participants entitled to receive a notice pursuant to the preceding sentence request inclusion of their Registrable Securities covered by the Resale Shelf Registration Statement (by written notice to the Company , which notice must be received by the Company no later than (A) in the case of a non-marketed Underwritten Takedown (other than a Block Trade), the Business Day following the date notice is given to such participant, (B) in the case of a Block Trade, by 10:00 p.m. Eastern time on the date notice is given to such participant and (C) in the case of a marketed Underwritten Takedown, three (3) Business Days following the date notice is given to such participant), the Initiating Holder(s) and the other Shelf Participants that request inclusion of their Registrable Securities shall be entitled to sell their Registrable Securities in such offering. Thereupon the Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, the offering in such Underwritten Takedown of:

 

(i) subject to the restrictions set forth in Section 2.2.4, all Registrable Securities for which the Initiating Holder(s) has requested such offering under Section 2.1.6, and

 

(ii) subject to the restrictions set forth in Section 2.2.4, all other Registrable Securities that any holders of Registrable Securities covered under the Resale Registration Shelf Statement have requested the Company to offer by request received by the Company in the requisite time period, all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be offered.

 

(b) Promptly after the expiration of the relevant time period, the Company will promptly notify all selling holders of the identities of the other selling holders and the number of shares of Registrable Securities requested to be included therein.

 

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(c) The Company shall only be required to effectuate, within any twelve (12) month period, one Underwritten Takedown by each of (A) the CPUH Investors, collectively, and (B) Allurion Investors, collectively.

 

2.1.7 Block Trade. If the Company shall receive a request from the holders of Registrable Securities with an estimated market value of at least $10,000,000 that the Company effect the sale of all or any portion of the Registrable Securities in a Block Trade, then the Company shall, as expeditiously as possible, initiate the offering in such Block Trade of the Registrable Securities for which such requesting holder has requested such offering under Section 2.1.7.

 

2.1.8 Selection of Underwriters. The Initiating Holder(s) shall have the right to select an Underwriter or Underwriters in connection with such Underwritten Takedown, which Underwriter or Underwriters shall be reasonably acceptable to the Company. In connection with an Underwritten Takedown, the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities in such Underwritten Takedown, including, if necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the Financial Industry Regulatory Authority, Inc.

 

2.1.9 Underwritten Takedowns effected pursuant to this Section 2.1 shall not be counted as Demand Registrations effected pursuant to Section 2.2.

 

2.2 Demand Registration.

 

2.2.1 Request for Registration. At any time and from time to time after the expiration of any lock-up to which an Investor’s shares are subject, if any, provided compliance by the Investors with Section 3.4, and provided further there is not an effective Resale Shelf Registration Statement available for the resale of all of the Registrable Securities pursuant to Section 2.1 (and subject to the right of holders to effect Underwritten Takedowns under Section 2.1), (i) CPUH Investors who hold a majority of the Registrable Securities held by all CPUH Investors or (ii) Allurion Investors who hold either a majority of the Registrable Securities held by all Allurion Investors, may make a written demand for Registration under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form Registration or, if then available, on Form S-3. Each registration requested pursuant to this Section 2.2.1 is referred to herein as a “Demand Registration”. Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will, within five (5) Business Days after receiving such demand, notify all Investors that are holders of Registrable Securities of the demand, and each such holder of Registrable Securities who wishes to include all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Company within five (5) Business Days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.2.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect: (a) more than one (1) Demand Registration during any twelve-month period (not including any Underwritten Takedown); (b) any Demand Registration at any time there is an effective Resale Shelf Registration Statement on file with the Commission pursuant to Section 2.1 that is not subject to a reduction of registered shares under Section 2.1.4 (and subject to the obligation to effect Underwritten Takedowns as set forth in Section 2.1); or (c) more than two (2) Underwritten Demand Registrations in respect of all Registrable Securities held by Investors.

 

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2.2.2 Effective Registration. A Registration will not count as a Demand Registration until the Registration Statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.

 

2.2.3 Underwritten Demand Registration. If the Demanding Holders so elect and such holders so advise the Company as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Demand Registration. In such event, the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by the holders initiating the Demand Registration, and subject to the approval of the Company. The parties agree that, in order to be effected, any Underwritten Demand Registration must result in aggregate proceeds to the selling stockholders of at least $5,000,000.

 

2.2.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Underwritten Demand Registration that is to be an underwritten offering advises the Company and the Demanding Holders in writing that, in such Underwriter’s or Underwriters’ opinion, the dollar amount or number of shares of Registrable Securities which the Demanding Holders desire to sell, taken together with all other shares of Pubco Common Stock or other securities which the Company desires to sell and the shares of Pubco Common Stock, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights held by other stockholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such person has requested be included in such registration, regardless of the number of shares held by each such person (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the shares of Pubco Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), any shares of Pubco Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, as to which “piggy-back” registration has been requested by the holders thereof that can be sold without exceeding the Maximum Number of Shares.

 

2.2.5 Withdrawal. A Demanding Holder shall have the right to withdraw all or any portion of its Registrable Securities included in an Underwritten Demand Registration pursuant to this Section 2.2 for any reason or no reason whatsoever upon written notice to the Company and the Underwriter or Underwriters of its intention to withdraw from such Underwritten Demand Registration prior to the pricing of such Underwritten Demand Registration; provided, however, that such withdrawn amount shall still be considered an Underwritten Demand Registration. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the registration expenses incurred in connection with an Underwritten Demand Registration prior to its withdrawal under this Section 2.2.5.

 

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2.3 Piggy-Back Registration.

 

2.3.1 Piggy-Back Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for stockholders of the Company for their account (or by the Company and by stockholders of the Company including, without limitation, pursuant to Section 2.2.1), other than a Registration Statement (i) filed in connection with any employee stock option, employee stock purchase, or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment plan, (v) effected pursuant to Section 2.1 or 2.2 (which, for the avoidance of doubt, is addressed in and subject to the rights set forth therein), then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities with respect to shares not subject to any lock-up, as soon as practicable but in no event less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) Business Days following receipt of such notice (a “Piggy-Back Registration”). The foregoing rights shall not be available to any Investor at such time as (i) there is an effective Resale Shelf Registration Statement available for the resale of the Registrable Securities pursuant to Section 2.1 (which, for the avoidance of doubt, is addressed in and subject to the rights set forth in, Section 2.1 and Section 2.2) and there was no reduction in registered shares as set forth in Section 2.1.4 or (ii) such Registration is solely to be used for the offering of securities by the Company for its own account. The Company shall cause such Registrable Securities to be included in such registration, provided compliance by the Investors with Section 3.4, and the Company shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.

 

2.3.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of shares of Pubco Common Stock which the Company desires to sell, taken together with shares of Pubco Common Stock, if any, as to which registration has been demanded pursuant to written contractual arrangements with persons other than the holders of Registrable Securities hereunder and the Registrable Securities as to which registration has been requested under this Section 2.3, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:

 

(a) If the registration is undertaken for the Company’s account: (A) first, the shares of Pubco Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the shares of Pubco Common Stock or other securities, if any, comprised of Registrable Securities, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares, Pro Rata; and (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Pubco Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares; and

 

(b) If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable Securities or the Company (other than as provided in Section 2.2 which, for the avoidance of doubt, is addressed in and subject to the rights set forth in, Section 2.2), (A) first, the shares of Pubco Common Stock or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the shares of Pubco Common Stock or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Pubco Common Stock or other securities, if any, comprised of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the shares of Pubco Common Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.

 

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2.3.3 Withdrawal. Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement, if such offering is pursuant to a Demand Registration, or prior to the public announcement of the offering, if such offering is pursuant to an Underwritten Takedown. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.

 

2.3.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3 shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2.

 

3.REGISTRATION PROCEDURES.

 

3.1 Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its commercially reasonable efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as reasonably possible, and in connection with any such request:

 

3.1.1 Filing Registration Statement. The Company shall use its commercially reasonable efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its commercially reasonable efforts to cause such Registration Statement to become effective and use its commercially reasonable efforts to keep it effective for the Effectiveness Period (as defined below); provided, however, that the Company shall have the right to defer any Demand Registration for up to forty-five (45) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any Demand Registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by the Company stating that, in the good faith judgment of the Board of Directors of the Company (the “Board”), it would require the Company to make an Adverse Disclosure; provided, further, however, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso twice, or for more than one hundred twenty (120) total calendar days in any three hundred sixty (360) day period.

 

3.1.2 Copies. The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the holders of Registrable Securities included in such registration, and such holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case, including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as the holders of Registrable Securities included in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable Securities owned by such holders.

 

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3.1.3 Amendments and Supplements. The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until the date on which all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn (the “Effectiveness Period”).

 

3.1.4 Notification. After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) Business Days after such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further notify such holders promptly and confirm such advice in writing in all events within two (2) Business Days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon.

 

3.1.5 Securities Laws Compliance. The Company shall use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction.

 

3.1.6 Agreements for Disposition. The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders of Registrable Securities included in such registration statement, and the representations, warranties and covenants of the holders of Registrable Securities included in such registration statement in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the Company.

 

3.1.7 Comfort Letter. In the event of an Underwritten Takedown or an Underwritten Demand Registration, the Company shall obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an underwritten offering, and a customary “bring-down” thereof, in customary form and covering such matters of the type customarily covered by “cold comfort” letters, as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating holders. For the avoidance of doubt, this Section 3.1.7 shall not apply to any Block Trade.

 

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3.1.8 Opinions and Negative Assurance Letters. In the event of an Underwritten Takedown or an Underwritten Demand Registration, on the date the Registrable Securities are delivered for sale pursuant to any Registration, the Company shall obtain an opinion and negative assurances letter, each dated such date, of one (1) counsel representing the Company for the purposes of such Registration, including an opinion of local counsel if applicable, addressed to the holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to such Registration in respect of which such opinion is being given as the holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority in interest of the participating holders. For the avoidance of doubt, this Section 3.1.8 shall not apply to any Block Trade.

 

3.1.9 Cooperation. The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with respect to such offering, the preparation of a comfort letter, if applicable, and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.

 

3.1.10 Transfer Agent. The Company shall provide and maintain a transfer agent and registrar for the Registrable Securities.

 

3.1.11 Records. Upon execution of confidentiality agreements, the Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any of them in connection with such Registration Statement.

 

3.1.12 Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its stockholders, as soon as practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.

 

3.1.13 Road Show. If an offering pursuant to this Agreement is conducted as an Underwritten Takedown or Underwritten Demand Registration and involves Registrable Securities with an aggregate offering price (before deduction of underwriting discounts) is expected to exceed $35,000,000, the Company shall use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such offering.

 

3.1.14 Listing. The Company shall use its commercially reasonable efforts to cause all Registrable Securities included in any Registration Statement to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated.

 

3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.4(iv), or, upon any suspension by the Company, pursuant to a good faith reasonable determination of the Board that the offer or sale of Registrable Securities would require the Company to disclose Adverse Disclosure, each holder of Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company, each such holder will deliver to the Company or destroy all copies, other than permanent file copies then in such holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. The foregoing right to delay or suspend may be exercised by the Company for no longer than one hundred twenty (120) total calendar days in any three hundred sixty (360) day period.

 

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3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in connection with the Resale Shelf Registration Statement pursuant to Section 2.1, any Demand Registration pursuant to Section 2.2.1, any Underwritten Takedown pursuant to Section 2.1.6, any Block Trade pursuant to Section 2.1.7 (other than expenses set forth below in clause (ix) of this Section 3.3), any Piggy-Back Registration pursuant to Section 2.3, and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.12; (vi) Financial Industry Regulatory Authority, Inc. fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company; (viii) the fees and expenses of any special experts retained by the Company in connection with such registration; and (ix) the reasonable fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration (not to exceed $50,000 without the consent of Company). The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders, but the Company shall pay any underwriting discounts or selling commissions attributable to the securities it sells for its own account.

 

3.4 Information. The holders of Registrable Securities shall promptly provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act and in connection with the Company’s obligation to comply with Federal and applicable state securities laws.

 

3.5 Other Obligations.

 

3.5.1 At any time and from time to time after the expiration of any lock-up to which such shares are subject, if any, in connection with a sale or transfer of Registrable Securities exempt from registration under the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within any prospectus and pursuant to the Registration Statement of which such prospectus forms a part, the Company shall, subject to the receipt of customary documentation required from the applicable holders in connection therewith, (i) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being sold or transferred and (ii) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (i). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested by such holders in connection with the aforementioned sales or transfers.

 

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3.5.2 The stock certificates evidencing the Registrable Securities (and/or book entries representing the Registrable Securities) held by each Investor shall not contain or be subject to any legend restricting the transfer thereof (and the Registrable Securities shall not be subject to any stop transfer or similar instructions or notations): (A) while a Registration Statement covering the sale or resale of such securities is effective under the Securities Act, (B) if such Investor provides customary paperwork to the effect that it has sold such shares pursuant to Rule 144, (C) if such Registrable Securities are eligible for sale under Rule 144(b)(1) as set forth in customary non-affiliate paperwork provided by such Investor, (D) if at any time on or after the date that is one year after the Form 10 Disclosure Filing Date such Investor certifies that it is not an affiliate of the Company and that such Investor’s holding period for purposes of Rule 144 in respect of such Registrable Securities is at least six (6) months, or (E) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) as determined in good faith by counsel to the Company or set forth in a legal opinion delivered by nationally recognized counsel to the Investor (collectively, the “Unrestricted Conditions”). The Company agrees that following the date that the Resale Shelf Registration Statement has been declared effective by the Commission or at such time as any of the Unrestricted Conditions is met or such legend is otherwise no longer required it will, no later than two (2) Business Days following the delivery by an Investor to the Company or its transfer agent of a certificate representing any Registrable Securities, issued with a restrictive legend, (or, in the case of Registrable Securities represented by book entries, delivery by an Investor to the Company or its transfer agent of a legend removal request) deliver or cause to be delivered to such Investor a certificate or, at the request of such Investor, deliver or cause to be delivered such Registrable Securities to such Investor by crediting the account of such Investor’s prime broker with DTC through its Deposit/Withdrawal at Custodian (“DWAC”) system, in each case, free from all restrictive and other legends and stop transfer or similar instructions or notations. If any of the Unrestricted Conditions is met at the time of issuance of any Registrable Securities (e.g., upon exercise of warrants), then such securities shall be issued free of all legends. Each Investor shall have the right to pursue any remedies available to it hereunder, or otherwise at law or in equity, including a decree of specific performance and/or injunctive relief, with respect to the Company’s failure to timely deliver shares of Pubco Common Stock without legend as required pursuant to the terms hereof.

 

3.5.3 As long as Registrable Securities remain outstanding the Company shall (a) cause the Pubco Common Stock to be eligible for clearing through DTC, through its DWAC system; (b) be eligible and participating in the Direct Registration System of DTC with respect to the Pubco Common Stock; (c) ensure that the transfer agent for the Pubco Common Stock is a participant in, and that the Pubco Common Stock is eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or successor thereto); and (d) use its reasonable best efforts to cause the Pubco Common Stock to not at any time be subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of shares of Pubco Common Stock through DTC, and, in the event the Pubco Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, use its reasonable best efforts to cause any such “chill,” “freeze” or similar restriction to be removed at the earliest possible time.

 

4.INDEMNIFICATION AND CONTRIBUTION.

 

4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Investor and each other holder of Registrable Securities, and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, (including reasonable and documented costs of investigation and legal expenses and any indemnity and contribution payments made to underwriters) arising out of or based upon any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability is finally judicially determined to have arisen out of or resulted from any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such selling holder expressly for use therein or to the extent related to any selling holder’s violation of the federal securities laws (including Regulation M) or failure to sell the Registrable Securities in accordance with the plan of distribution contained in the prospectus.

 

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4.2 Indemnification by Holders of Registrable Securities. Each selling holder of Registrable Securities will, in the event that any Registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling holder, indemnify and hold harmless to the fullest extent permitted by law the Company, each of its directors and officers, and each other selling holder of Registrable Securities and each other person, if any, who controls such other selling holder within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, only insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or the alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made expressly in reliance upon and in conformity with information furnished in writing to the Company by such selling holder in writing expressly for use therein, or (ii) such selling holder’s failure to sell the Registrable Securities in accordance with the plan of distribution contained in the prospectus, and shall reimburse the Company, its directors and officers, and each other selling holder or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such loss, claim, damage, liability or action. Each selling holder’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling holder upon the sale of Registrable Securities giving rise to such indemnification obligations.

 

4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Sections 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel, which counsel is reasonably acceptable to the Indemnifying Party) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.

 

4.4 Contribution.

 

4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

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4.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in Section 4.4.1.

 

4.4.3 The amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such holder from the sale of Registrable Securities which gave rise to such contribution obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

5.UNDERWRITING AND DISTRIBUTION.

 

5.1 Rule 144. The Company covenants that it shall timely file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission. Upon reasonable prior written request, the Company shall deliver to the Investors a customary written statement as to whether it has complied with such requirements.

 

6.LOCK-UP AGREEMENTS.

 

6.1 Investor Lock-Up. Without limiting the terms of any other Ancillary Document or any other contract, agreement or understanding entered into by any Investor, each Investor agrees that it shall not Transfer any shares of Pubco Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for shares of Pubco Common Stock (including New Securities) until the Lock-Up Release Date applicable to such Investor; provided, however, that the foregoing restrictions shall (i) not apply to any shares of Pubco Common Stock purchased in the PIPE Financing by any Investor, (ii) not apply to [100] shares of Pubco Common Stock held by each Investor, (iii) with respect to the Allurion Investors that purchased shares of Pubco Common Stock in the PIPE Financing (each, a “Participating Allurion Investor”), not apply to the Allurion Investor Released Shares and (iv) with respect to Sponsor, not apply to the Sponsor Released Shares. The foregoing restriction is expressly agreed to preclude each Investor from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of such Investor’s shares of Pubco Common Stock even if such shares of Pubco Common Stock would be disposed of by someone other than the undersigned until the Lock-Up Release Date. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of the Investor’s shares of Pubco Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from such shares of Pubco Common Stock. The foregoing restrictions shall not apply to Transfers made: (i) pursuant to a bona fide gift or charitable contribution; (ii) by will or intestate succession upon the death of an Investor; (iii) to any Permitted Transferee; (iv) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union; (v) in the case of any Investor that is not a natural person, pro rata to the direct or indirect partners, members or stockholders of an Investor or any related investment funds or vehicles controlled or managed by such persons or their respective affiliates in connection with the liquidation or dissolution thereof; (vi) to the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act; provided that such plan does not provide for the transfer of Pubco Common Stock until the Lock-Up Release Date; (vii) to the transfer of Pubco Common Stock or other securities convertible into or exercisable or exchangeable for Pubco Common Stock acquired in open market transactions after the Closing; or (viii) in the event of the Company’s completion of a liquidation, merger, share exchange or other similar transaction which results in all of its stockholders having the right to exchange their shares of Pubco Common Stock for cash, securities or other property; provided that in the case of (i) through (v), the recipient of such Transfer must enter into a written agreement agreeing to be bound by the terms of this Agreement in form and substance reasonably satisfactory to the Company, including the transfer restrictions set forth in this Section 6.1.

 

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6.2 Release. If, prior to the Lock-Up Release Date applicable to an Investor, the Company consents to any release or waiver of any of the restrictions set forth in Section 6.1 for such Investor (any such release, a “Triggering Release”; and, such party receiving such release, the “Triggering Release Party”), then shares of Pubco Common Stock held by each other Investor shall also be released from the restrictions set forth in Section 6.1 in the same manner and on the same terms (including with respect to any conditions or provisos that apply to such Triggering Release), such number of shares of Pubco Common Stock released for each other Investor being the total number of shares of Pubco Common Stock held by such Investor on the date of such Triggering Release multiplied by a fraction, the numerator of which shall be the number of shares of Pubco Common Stock, options, restricted stock units or warrants to purchase or receive any shares of Pubco Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Pubco Common Stock, released pursuant to the Triggering Release, and the denominator of which shall be the total number of shares of Pubco Common Stock, options, restricted stock units or warrants to purchase or receive any shares of Pubco Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Pubco Common Stock held by the Triggering Release Party on such date. Notwithstanding the foregoing, the provisions of this paragraph will not apply, and a release or waiver will not be deemed to be a Triggering Release: (i) if the release or waiver is effected solely to permit a transfer not involving a disposition for value, (ii) in the case of any primary and/or secondary underwritten public offering of shares of Pubco Common Stock, provided that such waiver or release shall only apply with respect to such Investor’s participation in such underwritten sale or (iii) if the release or waiver is granted to any individual party by the Company in an amount, individually or in the aggregate with other releases and waivers to other individuals, less than or equal to 1% of the total number of outstanding shares of Pubco Common Stock.

 

7.BOARD MATTERS.

 

7.1 Initial Composition. As of the Effective Time, the board of directors of the Company (the “Board”) shall consist of seven (7) directors, a majority of whom shall be “independent” directors for purposes of NYSE rules (each, an “Independent Director”), to initially consist of:

 

(i) One (1) director to be nominated by Shantanu Gaur (the “Gaur Nominee”);

 

(ii) One (1) director to be nominated by Remus Capital (the “Remus Nominee”);

 

(iii) One (1) director to be nominated by the Sponsor (the “Sponsor Nominee”);

 

(iv) One (1) Independent Director to be nominated by Shantanu Gaur (the “Gaur Independent Nominee”);

 

(v) One (1) Independent Director to be nominated by Remus Capital (the “Remus Independent Nominee”); and

 

(vi) Two (2) Independent Directors to be nominated by Allurion (the “Company Independent Nominees”), one of which is to be designated by RTW in accordance with the RTW Side Letter (the “RTW Designated Director”);

 

in each case, who shall serve in such capacity in accordance with the terms of this Agreement, the Business Combination Agreement, the Pubco Governing Documents (as defined in the Business Combination Agreement), applicable law and NYSE rules.

 

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7.2 Independent Nominees.

 

(a) Shantanu Gaur shall have the right and ability to recommend a Gaur Independent Nominee. If the Gaur Independent Nominee (or any Replacement Gaur Independent Nominee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, Shantanu Gaur shall have the ability to recommend a substitute person in accordance with this Section 7.2(a) (any such replacement nominee shall be referred to as a “Replacement Gaur Independent Nominee”).

 

(b) Until such time as Remus Capital beneficially owns in the aggregate less than the Remus Minimum Ownership Threshold, then (A) Remus Capital shall have the right and ability to recommend a Remus Independent Nominee and (B) if the Remus Independent Nominee (or any Replacement Remus Independent Nominee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, Remus Capital shall have the ability to recommend a substitute person in accordance with this Section 7.2(b) (any such replacement nominee shall be referred to as a “Replacement Remus Independent Nominee”).

 

(c) Until such time as the RTW Designation Condition is no longer satisfied, then unless the RTW Designated Director is otherwise nominated as an Independent Director, a Gaur Independent Nominee or a Remus Independent Nominee, RTW (A) shall have the right and ability to recommend the RTW Designated Director, who the Company shall cause to be nominated as a Company Independent Nominee and (B) if the RTW Designated Director (or any Replacement RTW Designated Director) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, RTW shall have the ability to recommend a substitute person in accordance with this Section 7.2(c) (any such replacement nominee shall be referred to as a “Replacement RTW Designated Director”) and the Company shall cause such substitute person to be nominated as a Company Independent Nominee (any such replacement nominee shall be referred to as a “Replacement Company Independent Nominee”).

 

(d) Any Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be, must (A) qualify as “independent” pursuant to NYSE rules, (B) satisfy requirements under applicable Law and (C) be independent of Shantanu Gaur, Remus Capital or the Company, as applicable. The Nominating and Governance Committee of the Company (the “Nominating and Governance Committee”) shall make its determination and recommendation regarding whether such Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be, meets the foregoing criteria within fifteen (15) business days after (1) such nominee has submitted to the Company (x) a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation (including an authorization form to conduct a background check, a representation agreement, consent to be named as a director in the Company’s proxy statement and certain other agreements) applicable to new directors of the Company and (y) a written representation that such nominee, if elected as a director of the Company, would be in compliance, and will comply, with all applicable Company guidelines and policies and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 7.2(d) as promptly as reasonably practicable. In the event the Nominating and Governance Committee does not accept a person recommended by Shantanu Gaur as the Replacement Gaur Independent Nominee, Remus Capital as the Replacement Remus Independent Nominee or RTW as the Replacement Company Independent Nominee, as the case may be, Shantanu Gaur, Remus Capital or RTW, as applicable, shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be, by the Nominating and Governance Committee, the Board shall vote on the appointment of such Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be, to the Board promptly after the Nominating and Governance Committee recommendation of such Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be; provided, however, that if the Board does not appoint such Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as the case may be, to the Board pursuant to this Section 7.2(d), Shantanu Gaur, Remus Capital or RTW, as applicable, shall continue to follow the procedures of this Section 7.2(d) until a Replacement Gaur Independent Nominee, Replacement Remus Independent Nominee or Replacement Company Independent Nominee, as applicable, is elected to the Board.

 

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7.2.2 Company Obligations. The Company agrees:

 

(a) that until such time as Remus Capital no longer meets the Remus Minimum Ownership Threshold, and provided that the Remus Independent Nominee is able and willing to continue to serve on the Board, the Company will include each applicable Remus Independent Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected;

 

(b) that until such time as Shantanu Gaur no longer meets the Gaur Minimum Ownership Threshold, and provided that the Gaur Independent Nominee is able and willing to continue to serve on the Board, the Company will include each applicable Gaur Independent Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected;

 

(c) that until such time as RTW no longer meets the RTW Designation Condition, and provided that the RTW Designated Director is able and willing to continue to serve on the Board, the Company will include each applicable RTW Designated Director as a Company Independent Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected;

 

(d) to recommend, support and solicit proxies for each such Gaur Independent Nominee, Remus Independent Nominee or RTW Designated Director as a Company Independent Nominee, in each such case, in substantially the same manner as it recommends, supports and solicits proxies for any other members of such slate of director nominees;

 

(e) to cause to be nominated a lead Independent Director (the “Lead INED”) of the Board, who shall serve at all times as chair or co-chair of the Board, and who initially shall be Omar Ishrak. The Company shall cause the Lead INED to be nominated as the Sponsor Nominee; and

 

(f) from time to time and at all times on or prior to the second (2nd) anniversary of the Closings (as defined in the Business Combination Agreement), to cause Omar Ishrak to be the Lead INED; provided, that, at the time when such annual or special meeting of stockholders at which an election of directors is held or at the time when such written consent of the stockholders to elect one or more directors is entered into, Omar Ishrak (i) has not refused and continues to refuse to stand for re-election, (ii) is not unable to discharge the duties of the Lead INED due to death or incapacity or (iii) is not ineligible to serve as the Lead INED.

 

7.2.3 Certain Investor Obligations.

 

(a) Remus Capital agrees and commits solely with the Company (and not any other party) that such party will appear in person or by proxy at any meeting of Company stockholders at which directors are to be elected and vote all shares beneficially owned by such party in favor of each of the nominees on the slate of director nominees nominated by the Company and otherwise in accordance with the Board’s recommendation on any other proposal relating to the appointment, election or removal of directors. The obligation for the Remus Capital to comply with this Section 7.2.3(a) shall automatically terminate without any further action at such time as Remus Capital no longer meets the Remus Minimum Ownership Threshold.

 

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(b) Remus Capital agrees and commits solely with the Company (and not any other party) that prior to any Remus Independent Nominee (including any Replacement Remus Independent Nominee) being appointed to the Board, the Remus Independent Nominee shall have submitted to the Board a duly executed irrevocable resignation letter pursuant to which such nominee shall resign from the Board and all applicable committees thereof automatically and effective immediately if Remus Capital fails to have the right to nominate such nominee to the Board. Remus Capital shall promptly (and in any event within five (5) business days) provide written notice to the Company if Remus Capital fails to satisfy the Remus Minimum Ownership Threshold at any time.

 

7.3 Other Nominees.

 

7.3.1 Other Nominees.

 

(a) Remus Capital. Until such time as the Remus Director Nomination Number is zero (0), then (A) Remus Capital shall have the right and ability to recommend a number of Remus Nominees equal to the Remus Director Nomination Number and (B) if any Remus Nominee (or any Replacement Remus Nominee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, Remus Capital shall have the ability to recommend a substitute person in accordance with this Section 7.3 (any such replacement nominee shall be referred to as a “Replacement Remus Nominee”).

 

(b) Sponsor.

 

(i) Until such time as the Sponsor Director Nomination Number is zero (0), then (A) the Sponsor shall have the right and ability to recommend a number of Sponsor Nominees equal to the Sponsor Director Nomination Number and (B) if any Sponsor Nominee (or any Replacement Sponsor Nominee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, the Sponsor shall have the ability to recommend a substitute person in accordance with this Section 7.3 (any such replacement nominee shall be referred to as a “Replacement Sponsor Nominee”).

 

(ii) The initial Sponsor Nominee shall be Omar Ishrak.

 

(iii) The Sponsor agrees, from time to time and at all times on or prior to the second (2nd) anniversary of the Closings (as defined in the Business Combination Agreement), to cause Omar Ishrak to be the Sponsor Nominee; provided, that, at the time when such annual or special meeting of stockholders at which an election of directors is held or at the time when such written consent of the stockholders to elect one or more directors is entered into, Omar Ishrak (i) has not refused and continues to refuse to stand for re-election, (ii) is not unable to discharge the duties of the Sponsor Nominee due to death or incapacity or (iii) is not ineligible to serve as the Sponsor Nominee.

 

(c) Gaur Nominee. Until such time as the Gaur Director Nomination Number is zero (0), then (A) Shantanu Gaur shall have the right and ability to recommend a number of Gaur Nominees equal to the Gaur Director Nomination Number and (B) if any Gaur Nominee (or any Replacement Gaur Nominee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve as a director, Shantanu Gaur shall have the ability to recommend a substitute person in accordance with this Section 7.3 (any such replacement nominee shall be referred to as a “Replacement Gaur Nominee”).

 

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7.3.2 Replacement Nominees.

 

(a) Any Replacement Remus Nominee, Replacement Sponsor Nominee or Replacement Gaur Nominee, as the case may be, must satisfy requirements under applicable Law. The Nominating and Governance Committee of the Company shall make its determination and recommendation regarding whether such Replacement Remus Nominee, Replacement Sponsor Nominee or Replacement Gaur Nominee, as the case may be, meets the foregoing criteria within fifteen (15) business days after such nominee has submitted to the Company (x) a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation (including an authorization form to conduct a background check, a representation agreement, consent to be named as a director in the Company’s proxy statement and certain other agreements) applicable to new directors of the Company and (y) a written representation that such nominee, if elected as a director of the Company, would be in compliance, and will comply, with all applicable Company guidelines and policies. If the Nominating and Governance Committee determines that such person meets such criteria, the Board shall vote to elect such person to the Board promptly following the Nominating and Governance Committee’s determination. In the event the Nominating and Governance Committee determines that such person does not meet such criteria, Remus Capital, Sponsor or Shantanu Gaur, as applicable, shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating and Governance Committee recommending such person in accordance with the procedures described above.

 

7.3.3 Company Obligations. The Company agrees:

 

(a) that until such time as the Remus Director Nomination Number is zero (0), and provided that the Remus Nominee is able and willing to continue to serve on the Board, the Company will include such Remus Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected;

 

(b) that until such time that the Sponsor Director Nomination Number is zero (0), and provided that the Sponsor Nominee is able and willing to continue to serve on the Board, the Company will include the Sponsor Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected;

 

(c) that until such time that the Gaur Director Nomination Number is zero (0), and provided that the Gaur Nominee is able and willing to continue to serve on the Board, the Company will include the Gaur Nominee in the Company’s slate of director nominees to stand for election to the Board at any meeting of Company stockholders at which directors are to be elected; and

 

(d) to recommend, support and solicit proxies for each such Remus Nominee, Sponsor Nominee or Gaur Nominee, in each such case, in substantially the same manner as it recommends, supports and solicits proxies for any other members of such slate of director nominees.

 

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7.3.4 Certain Investor Obligations.

 

(a) Each of Remus Capital, Sponsor or Shantanu Gaur, severally and not jointly, agrees and commits solely with the Company (and not any other party) that such party will appear in person or by proxy at any meeting of Company stockholders at which directors are to be elected and vote all shares beneficially owned by such party in favor of each of the nominees on the slate of director nominees nominated by the Company and otherwise in accordance with the Board’s recommendation on any other proposal relating to the appointment, election or removal of directors. The obligation for Remus Capital to comply with this Section 7.3.4(a) shall automatically terminate without any further action at such time as the Remus Director Nomination Number is zero (0). The obligation for the Sponsor to comply with this Section 7.3.4(a) shall automatically terminate without any further action at such time as the Sponsor Director Nomination Number is zero (0). The obligation for Shantanu Gaur to comply with this Section 7.3.4(a) shall automatically terminate without any further action at such time as the Gaur Director Nomination Number is zero (0).

 

(b) Each of Remus Capital, Sponsor or Shantanu Gaur, severally and not jointly, agrees and commits solely with the Company (and not any other party) that (x) solely in the case of Remus Capital, prior to any Remus Nominees (including any Replacement Remus Nominees) being appointed to the Board, (y) solely in the case of the Sponsor, prior to any Sponsor Nominee (including any Replacement Sponsor Nominee) being appointed to the Board, or (z) solely in the case of the Gaur Nominee, prior to any Gaur Nominee (including any Replacement Gaur Nominee) being appointed to the Board, the Remus Nominee, the Sponsor Nominee and/or the Gaur Nominee, as the case may be, shall have submitted to the Board a duly executed irrevocable resignation letter pursuant to which such nominee(s) shall resign from the Board and all applicable committees thereof automatically and effective immediately if Remus Capital (solely in the case of the Remus Nominees), the Sponsor (solely in the case of the Sponsor Nominee) or Shantanu Gaur (solely in the case of the Gaur Nominee), fail(s) to have the right to nominate such nominee(s) to the Board. Remus Capital shall promptly (and in any event within five (5) business days) provide written notice to the Company if the Remus Director Nomination Number is reduced to zero (0) at any time. The Sponsor shall promptly (and in any event within five (5) business days) provide written notice to the Company if the Sponsor Director Nomination Number is reduced to zero (0) at any time. Shantanu Gaur shall promptly (and in any event within five (5) business days) provide written notice to the Company if the Gaur Director Nomination Number is reduced to zero (0) at any time.

 

8.MISCELLANEOUS.

 

8.1 Other Registration Rights and Arrangements. The Company represents and warrants that no person, other than a holder of the Registrable Securities, the investors of the PIPE Financing and Fortress pursuant to the Fortress Credit Agreement (as such terms are defined in the Business Combination Agreement) has any right to require the Company to register any of the Company’s capital stock for sale or to include the Company’s capital stock in any registration filed by the Company for the sale of capital stock for its own account or for the account of any other person. The parties hereby terminate the Prior Agreements, each of which shall be of no further force and effect and is hereby superseded and replaced in its entirety by this Agreement. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement and in the event of any conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

 

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8.2 Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the holders of Registrable Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction with and to the extent of any permitted transfer of Registrable Securities by any such holder to a Permitted Transferee. Any attempted assignment of this Agreement not in accordance with the terms of this Section 8.2 shall be void. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and assigns and the holders of Registrable Securities and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Section 4 and this Section 8.2. The rights of a holder of Registrable Securities under this Agreement may be transferred by such a holder to a transferee who acquires or holds Registrable Securities; provided, however, that such transferee has executed and delivered to the Company a properly completed agreement to be bound by the terms of this Agreement substantially in form attached hereto as Exhibit A (an “Addendum Agreement”), and the transferor shall have delivered to the Company no later than fifteen (15) days following the date of the transfer, written notification of such transfer setting forth the name of the transferor, the name and address of the transferee, and the number of Registrable Securities so transferred. The execution of an Addendum Agreement shall constitute a permitted amendment of this Agreement.

 

8.3 Amendments and Modifications. Upon the written consent of the Company and the Investors holding a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, that (a) the provisions of Sections 7.2 and 7.3 and related definitions as it relates to the Gaur Independent Nominee or Gaur Nominee may not be amended, modified, terminated or waived without the written consent of Shantanu Gaur; (b) the provisions of Sections 7.2 and 7.3 and related definitions as it relates to the Remus Independent Nominee or Remus Nominee may not be amended, modified, terminated or waived without the written consent of Remus Capital; (c) the provisions of Section 7.3 and related definitions as it relates to the Sponsor Nominee may not be amended, modified, terminated or waived without the written consent of the Sponsor; (d) any amendment hereto or waiver hereof that adversely affects an Investor, solely in his, her or its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from other Investors (in such capacity) shall require the consent of such Investor so affected; and (e) any waiver, amendment or repeal of the restrictions set forth in Section 6.1 (or of this Section 8.3 in respect of this proviso) shall require the prior written consent of the Sponsor. This Agreement may not be modified or amended except as provided in the immediately preceding sentence and any purported amendment by any party hereto effected in a manner which does not comply with this Section 8.3 shall be void, ab initio. No course of dealing between any Investor or the Company and any other party hereto or any failure or delay on the part of an Investor or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Investor or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

8.4 Term. This Agreement shall terminate upon the earlier of (i) the seventh anniversary of the date of this Agreement, (ii) a Change of Control (as defined in the Business Combination Agreement) or (iii) the date as of which there shall be no Registrable Securities outstanding; provided, further that with respect to any Investor, such Investor will have no rights under this Agreement and all obligations of the Company to such Investor under this Agreement shall terminate upon the earlier of (x) the date at least one year after the date hereof that such Investor ceases to hold at least 1% of the Registrable Securities outstanding on the date hereof or (y) if such Investor is a director or an executive officer of the Company, the date such Investor no longer serves as a director or an executive officer of the Company; provided, however, that such termination as to an Investor shall not apply to the following provisions until such Investor no longer holds any Registrable Securities: Sections 3.1.4, 3.1.5, 3.1.10, 3.1.12, 3.1.14, 3.2, 3.3, 3.4, 3.5, 8.3, 8.5 and Articles IV and V. Notwithstanding the foregoing, (a) the piggy-back registration rights provided for in Section 2.3 of this Agreement shall terminate no later than the third anniversary of the date of this Agreement and (b) the obligations set forth in Article VII shall survive until the earlier of a termination of this Agreement in accordance with clauses (i) or (ii) above or with respect to an Investor at such time as such Investor is no longer entitled to nominate a director to the Board.

 

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8.5 Notices. All notices, demands, requests, claims and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given) (i) by delivery in person, (ii) by e-mail (having obtained electronic delivery confirmation thereof, but excluding any automated reply, such as an out-of-office notification), (iii) by FedEx or other nationally recognized overnight delivery service or (iv) posting in the United States mail (having been sent registered or certified mail return receipt requested, postage prepaid) (upon receipt thereof), to the parties as follows:

 

If to the Company:

 

Allurion Technologies, Inc.

11 Huron Drive

Natick, MA 01760

Attention: Chief Executive Officer

Email: sgaur@allurion.com

 

with a copy to:

 

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

Attention: Danielle M. Lauzon and Paul R. Rosie

E-mail: dlauzon@goodwinlaw.com, prosie@goodwinlaw.com

 

If to an Investor, to the address set forth under such Investor’s signature to this Agreement or to such Investor’s address as found in the Company’s books and records.

 

8.6 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, then all other provisions of this Agreement shall remain in full force and effect. Furthermore, upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties hereto shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

 

8.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement.

 

8.8 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements, representations, undertakings, understandings and other arrangements, both oral and written, among the parties hereto with respect to the subject matter hereof, including, without limitation the Prior Agreements.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties have caused this Investor Rights and Lock-up Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.

 

  ALLURION TECHNOLOGIES, INC.
     
  By:
    Name:
    Title:

 

Signature Page to Investor Rights and Lock-up Agreement

 

 

 

 

INVESTORS:
  
  
  

 

 

 

Signature Page to Investor Rights and Lock-up Agreement

 

 

 

 

EXHIBIT A

 

Addendum Agreement

 

This Addendum Agreement (“Addendum Agreement”) is executed on __________________, 20___, by the undersigned (the “New Holder”) pursuant to the terms of that certain Investor Rights and Lock-up Agreement dated as of [   ], 2023 (the “Agreement”), by and among the Company and the Investors identified therein, as such Agreement may be amended, supplemented or otherwise modified from time to time. Capitalized terms used but not defined in this Addendum Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Addendum Agreement, the New Holder agrees as follows:

 

1. Acknowledgment. New Holder acknowledges that New Holder is acquiring certain shares of common stock of the Company (the “Pubco Common Stock”) as a transferee of such shares of Pubco Common Stock from a party in such party’s capacity as a holder of Registrable Securities under the Agreement, and after such transfer, New Holder shall be considered an “Investor” and a holder of Registrable Securities for all purposes under the Agreement.

 

2. Agreement. New Holder hereby (a) agrees that the shares of Pubco Common Stock shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if the New Holder were originally a party thereto.

 

3. Notice. Any notice required or permitted by the Agreement shall be given to New Holder at the address or facsimile number listed below New Holder’s signature below.

 

NEW HOLDER:   ACCEPTED AND AGREED:
       
Print Name:______________________________   ALLURION TECHNOLOGIES, INC.
         
By:                                           By:
        Name:
        Title:

 

A-1

Exhibit 10.5

 

PRIVATE & CONFIDENTIAL

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on February __, 2023, by and among Compute Health Acquisition Corp., a Delaware corporation (the “Company”), Allurion Technologies Holdings, Inc., a Delaware corporation (“Pubco”) and the undersigned subscriber (“Subscriber”).

 

WHEREAS, concurrently with the execution of this Subscription Agreement, the Company, Pubco, Compute Health Corp., a Delaware corporation (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company (“Merger Sub II” and together with Merger Sub I, the “Merger Subs”), Allurion Technologies, Inc., a Delaware corporation (“Allurion”), are, together with the other parties thereto, entering into a definitive agreement providing for a business combination between the Company and Allurion (as amended, modified, supplemented or waived from time to time, the “Business Combination Agreement” and the transactions contemplated by the Business Combination Agreement, the “Transactions”), pursuant to which, among other things, in the manner, and on the terms and subject to the conditions and exclusions set forth therein, (i) the Company will merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the surviving company in the CPUH Merger and, after giving effect to such merger, becoming the sole owner of each Merger Sub, (ii) Merger Sub I will merge with and into Allurion (the “Intermediate Merger”), with Allurion surviving as the surviving company in the Intermediate Merger (Allurion, in its capacity as the surviving company of the Intermediate Merger, the “Intermediate Surviving Corporation”) and, after giving effect to such merger, becoming a wholly-owned subsidiary of Pubco and (iii) the Intermediate Surviving Corporation will merge with and into Merger Sub II (the “Final Merger” and, collectively with the CPUH Merger and the Intermediary Merger, the “Mergers”), with Merger Sub II surviving as the surviving company in the Final Merger;

 

WHEREAS, in connection with the Transactions, Subscriber desires to subscribe for and purchase from Pubco, immediately prior to the consummation of the Transactions, that number of shares of Pubco’s common stock, par value $0.0001 per share (the “Common Stock”), set forth on the signature page hereto (the “Subscribed Shares”) for a purchase price of $7.04 per share (the “Per Share Price” and the aggregate of such Per Share Price for all Subscribed Shares being referred to herein as the “Purchase Price”), and Pubco desires to issue and sell to Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to Pubco;

 

WHEREAS, on or about the date of this Subscription Agreement, the Company and Pubco are entering into (i) subscription agreements (the “Other Subscription Agreements” and together with the Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Subscribers” and together with Subscriber, the “Subscribers”), pursuant to which such Subscribers have agreed to purchase shares of Common Stock on the Closing Date (as defined below), at the Per Share Price (the shares of the Other Subscribers, the “Other Subscribed Shares” and the transaction, the “PIPE Transaction”) and (ii) a side letter (the “RTW Side Letter”) with RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd. and RTW Venture Fund Limited (collectively, the “RTW Subscribers”), pursuant to which the RTW Subscribers, in consideration for their entry into Other Subscription Agreements and the Royalty Financing Agreement (each as defined in the RTW Side Letter), will receive the rights and benefits set forth in the RTW Side Letter, attached hereto as Annex B; and

 

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

 

Section 1. Subscription. Subject to the terms and conditions hereof, Subscriber, severally and not jointly with any of the Other Subscribers, hereby agrees that at the Closing (as defined below), to irrevocably subscribe for and purchase from Pubco, and Pubco hereby agrees to issue and sell to Subscriber, the Subscribed Shares (such subscription and issuance, the “Subscription”).

 

1

 

 

Section 2. Closing.

 

(a) The consummation of the Subscription contemplated hereby (the “Closing”) shall occur on the closing date of the Transactions (the “Closing Date”), following the CPUH Merger and immediately prior to or substantially concurrently with the consummation of the Intermediate Merger.

 

(b) At least five (5) Business Days before the anticipated Closing Date, the Company shall deliver written notice to Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price to the Company. No later than two (2) Business Days prior to the Closing Date as set forth in the Closing Notice, Subscriber shall deliver the Purchase Price for the Subscribed Shares by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice, and such funds shall be held by the Company in escrow, segregated from and not comingled with the other funds of the Company (and in no event will such funds be held in the Trust Account (as defined below)), until the Closing Date. Upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 2, Pubco shall deliver to Subscriber (i) on the Closing Date, the Subscribed Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under this Subscription Agreement or applicable securities laws), in the name of Subscriber (or its nominee or custodian in accordance with its delivery instructions) (and the Purchase Price shall be released from escrow automatically and without further action by Pubco or Subscriber), and (ii) as promptly as practicable after the Closing, evidence from Pubco’s transfer agent of the issuance to Subscriber of the Subscribed Shares on and as of the Closing Date.

 

(c) Notwithstanding Section 2(b), if Subscriber informs the Company (1) that it is an investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), (2) that it is advised by an investment adviser subject to regulation under the Investment Advisers Act of 1940, as amended, or (3) that its internal compliance policies and procedures so require it, then, in lieu of the settlement procedures in Section 2(b), the following shall apply: (i) no later than two (2) Business Days prior to the Closing Date as set forth in the Closing Notice, Subscriber shall provide the Company such information that the Company reasonably requests in order for Pubco to issue the Subscribed Shares, including, without limitation, the name of the person in whose name the Subscribed Shares are to be issued (or a nominee as indicated by Subscriber) and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable, (ii) upon confirmation of Subscriber’s available funds necessary to initiate the wiring of the Purchase Price for the Subscribed Shares, but prior to Subscriber’s release of its payment of the Purchase Price for the Subscribed Shares, on the Closing Date, Pubco shall issue and deliver to Subscriber the Subscribed Shares, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), in book entry form in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable and a copy of the records of Pubco’s transfer agent showing Subscriber (or its nominee in accordance with its delivery instructions) as the registered holder of the Subscribed Shares on and as of the Closing Date, and (iii) at 8:00 a.m. New York City time on the Closing Date (or as soon as practicable following receipt of evidence from Pubco’s transfer agent of the issuance to Subscriber of the Subscribed Shares on and as of the Closing Date), Subscriber shall deliver the Purchase Price by wire transfer of United States dollars in immediately available funds to the account(s) specified by the Company in the Closing Notice (which shall not be escrow accounts).

 

(d) In the event that the consummation of the Transactions does not occur within five (5) Business Days after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by the Company and Subscriber, the Company or Pubco, as applicable, shall promptly (but in no event later than seven (7) Business Days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by Subscriber by wire transfer in immediately available funds to the account specified by Subscriber, and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation (x) a failure to close on the anticipated Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 2 to be satisfied or waived on or prior to the Closing Date, and (y) unless and until this Subscription Agreement is terminated in accordance with Section 6 herein, Subscriber shall remain obligated to redeliver funds to the Company or Pubco, as set forth in the Closing Notice, following the Company’s delivery to Subscriber of a new Closing Notice in accordance with this Section 2 and Subscriber, Pubco and the Company shall remain obligated to consummate the Closing upon satisfaction of the conditions set forth in this Section 2 following the Company’s delivery to Subscriber of a new Closing Notice. For the purposes of this Subscription Agreement, “Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general transaction of business.

 

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(e) The obligations of Subscriber, Pubco and the Company to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable law, waiver by the parties hereto, of the conditions that, on the Closing Date:

 

(i)all conditions precedent to the closing of the Transactions set forth in Article 6 of the Business Combination Agreement shall have been satisfied (as determined by the parties to the Business Combination Agreement) or waived in writing by the person with the authority to make such waiver (other than those conditions which, by their nature, are to be satisfied at the closing of the Transactions pursuant to the Business Combination Agreement, but subject to the satisfaction of such conditions at such closing), and following the consummation of the CPUH Merger, the closing of the additional Transactions shall be scheduled to occur substantially concurrently with the Closing;

 

(ii)the Subscribed Shares shall have been approved for listing, subject to official notice of issuance, on the Stock Exchange (as defined below), and no suspension of the listing or qualification of the offering or sale or trading on such Stock Exchange of the Subscribed Shares shall have occurred and be continuing; and

 

(iii)no order or law issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Subscription Agreement (including the Closing) shall be in effect.

 

(f) The obligations of the Company and Pubco to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the additional conditions that, on the Closing Date:

 

(i)except as otherwise provided under Section 2(f)(ii), all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements of Subscriber contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable;

 

(ii)the representations and warranties of Subscriber contained in Section 4(w) of this Subscription Agreement shall be true and correct at all times on or prior to the Closing Date, and consummation of the Closing shall constitute a reaffirmation by Subscriber of such representations and warranties; and

 

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

 

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(g) The obligations of Subscriber to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by Subscriber of the additional conditions that, on the Closing Date:

 

(i)the Business Combination Agreement shall not have been materially amended, modified, supplemented or waived, without the written consent of Subscriber;

 

(ii)all representations and warranties of the Company and Pubco contained in this Subscription Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by the Company and Pubco of each of the representations, warranties and agreements of the Company or Pubco, respectively, contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable, except, in each case, where the failure of such representations and warranties to be true and correct (whether as of the Closing Date or such earlier date), taken as a whole, does not result in a Company Material Adverse Effect or Pubco Material Adverse Effect; and

 

(iii)the Company and Pubco shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by the Company or Pubco, respectively, at or prior to the Closing.

 

(h) Prior to or at the Closing, Subscriber shall deliver to the Company and Pubco all such other information as is reasonably requested in order for Pubco to issue the Subscribed Shares to Subscriber, including, without limitation, the legal name of the person in whose name the Subscribed Shares are to be issued (or Subscriber’s nominee in accordance with its delivery instructions) and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.

 

Section 3. Company and Pubco Representations and Warranties. Each of the Company, solely with respect to the representations and warranties set forth below relating to the Company, and Pubco, solely with respect to the representations and warranties set forth below relating to Pubco, represents and warrants, severally and not jointly, to Subscriber that:

 

(a) The Company (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Subscription Agreement, a “Company Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Company that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay the Company’s performance of (x) its obligations under this Subscription Agreement or (y) the Transactions.

 

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(b) Pubco (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Pubco Material Adverse Effect. For purposes of this Subscription Agreement, a “Pubco Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Pubco that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay Pubco’s performance of (x) its obligations under this Subscription Agreement, including the issuance and sale of the Subscribed Shares, or (y) the Transactions.

 

(c) When issued pursuant to this Subscription Agreement, the Subscribed Shares have been duly authorized and, when issued and delivered to Subscriber (or its nominee or custodian in accordance with its delivery instructions) against full payment therefor in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement, the governing and organizational documents of Pubco or applicable securities laws), and will not have been issued in violation of, or subject to, any preemptive or similar rights created under the Company’s governing and organizational documents or the laws of the State of Delaware.

 

(d) This Subscription Agreement has been duly authorized, validly executed and delivered by the Company and Pubco, and assuming the due authorization, execution and delivery of the same by Subscriber, this Subscription Agreement shall constitute the valid and legally binding obligation of the Company and Pubco, enforceable against the Company and Pubco in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

 

(e) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, the execution and delivery of this Subscription Agreement, the compliance by the Company with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) the organizational documents of the Company, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Company Material Adverse Effect.

 

(f) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, the execution and delivery of this Subscription Agreement, the issuance and sale of the Subscribed Shares by Pubco hereunder, the compliance by Pubco with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Pubco pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Pubco is a party or by which Pubco is bound or to which any of the property or assets of Pubco is subject, (ii) the organizational documents of Pubco, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Pubco or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Pubco Material Adverse Effect.

 

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(g) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, neither the Company nor Pubco is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including any stock exchange on which the Common Stock will be listed (the “Stock Exchange”) or other person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares by Pubco), other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement (as defined below) pursuant to Section 5 below, (iii) filings required by the Securities Act of 1933, as amended (the “Securities Act”), Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules of United States Securities and Exchange Commission (the “Commission”), including the registration statement on Form S-4 with respect to the Transactions and the proxy statement/prospectus included therein, (iv) filings required by the Stock Exchange, including with respect to obtaining stockholder approval of the Transactions, (v) filings required to consummate the Transactions as provided under the Business Combination Agreement, (vi) the filing of notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, (vii) filings in connection with or as a result of the SEC Guidance (as defined below) and (viii) those the failure of which to obtain would not have a Company Material Adverse Effect or a Pubco Material Adverse Effect.

 

(h) Except for such matters as have not had and would not reasonably be expected to have a Company Material Adverse Effect or Pubco Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Company or Pubco, threatened in writing against the Company or Pubco or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company or Pubco.

 

(i) Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4 of this Subscription Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Subscribed Shares by the Company and Pubco to Subscriber.

 

(j) None of the Company, Pubco or any person acting on their behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Subscribed Shares. The Subscribed Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. None of the Company, Pubco or any person acting on their behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale by Pubco of the Subscribed Shares as contemplated hereby or the Other Subscribed Shares as contemplated by the Other Subscription Agreements or (ii) cause the offering of the Subscribed Shares pursuant to this Subscription Agreement or the Other Subscribed Shares pursuant to the Other Subscription Agreements to be integrated with prior offerings by the Company or Pubco for purposes of the Securities Act or any applicable stockholder approval provisions. None of the Company, Pubco or any person acting on their behalf has offered or sold or will offer or sell any securities, or has taken or will take any other action, which would reasonably be expected to subject the offer, issuance or sale of the Subscribed Shares or the Other Subscribed Shares, as contemplated hereby, to the registration provisions of the Securities Act.

 

(k) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to Pubco, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) of the Securities Act is applicable.

 

(l) The Company is in all material respects in compliance with, and has not received any written communication from a governmental entity that alleges that the Company is not in compliance with, or is in default or violation of, the applicable provisions of (i) the Securities Act, (ii) the Exchange Act, (iii) the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder, (iv) the rules and regulations of the Commission, and (v) the rules of the Stock Exchange, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Pubco is in all material respects in compliance with, and has not received any written communication from a governmental entity that alleges that Pubco is not in compliance with, or is in default or violation of, the applicable provisions of (i) the Securities Act, (ii) the Exchange Act, (iii) the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder, (iv) the rules and regulations of the Commission, and (v) the rules of the Stock Exchange, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a Pubco Material Adverse Effect. For the avoidance of doubt, this representation and warranty shall not apply to the extent any of the foregoing matters arise from or relate to the SEC Guidance (as defined below).

 

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(m) When the Subscribed Shares are issued pursuant to this Subscription Agreement, the Common Stock will be eligible for clearing through The Depository Trust Company (the “DTC”), through its Deposit/Withdrawal At Custodian (DWAC) system, and Pubco will be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the Common Stock. Pubco’s transfer agent will be a participant in DTC’s Fast Automated Securities Transfer Program. The Common Stock will not be, and will not have been at any time, subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of shares of Common Stock through DTC.

 

(n) No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Subscribed Shares to Subscriber.

 

(o) As of their respective dates, each form, report, statement, schedule, prospectus, proxy, registration statement and other document required to be filed by the Company with the Commission prior to the date hereof (collectively, as amended and/or restated since the time of their filing, the “SEC Documents”) complied in all material respects with the requirements of the Securities Act and the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Documents, as of their respective dates (or if amended, restated, or superseded by a filing prior to the closing of the Transactions, on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents (or if amended, restated, or superseded by a filing prior to the closing of the Transactions, on the date of such filing) comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments, and such consolidated financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”) (except as may be disclosed therein or in the notes thereto, and except that the unaudited financial statements may not contain all footnotes required by GAAP). A copy of each SEC Document is available to each Subscriber via the Commission’s EDGAR system. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the Commission with respect to any of the SEC Documents as of the date hereof. Notwithstanding the foregoing, this representation and warranty shall not apply to any statement or information in the SEC Documents that relates to (i) the topics referenced in the Commission’s “Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies” on April 12, 2021 or (ii) the classification of shares of the Company’s common stock as permanent or temporary equity, or any subsequent guidance, statements or interpretations issued by the Commission or the staff of the Commission, including guidance, statements or interpretations relating to the foregoing or to other accounting matters, including matters relating to initial public offering securities or expenses (collectively, the “SEC Guidance”), and no correction, amendment or restatement of any of the Company’s SEC Documents due to the SEC Guidance shall be deemed to be a breach of any representation or warranty by the Company or Pubco.

 

(p) As of the date hereof, the authorized share capital of the Company consists of 333,000,000 shares of stock, consisting of (i) 300,000,000 shares of Class A common stock, par value $0.0001 per share (the “Company Class A Common Stock”), (ii) 30,000,000 shares of Class B common stock, par value $0.0001 per share (the “Company Class B Common Stock” and together with the Company Class A Common Stock, the “Company Common Stock”), and (iii) 3,000,000 shares of preferred stock, par value $0.0001 per share (the “Company Preferred Stock”). As of the date hereof and prior to giving effect to the Transactions: (i) 9,223,194 shares of Company Class A Common Stock were issued and outstanding; (ii) 21,562,500 shares of Company Class B Common Stock were issued and outstanding; (iii) 21,562,500 warrants, each exercisable to purchase one share of Company Class A Common Stock at an initial exercise price of $11.50 per share, and 12,833,333 private placement warrants, each exercisable to purchase one share of Company Class A Common Stock at an initial exercise price of $11.50 per share (together “Company Warrants”), were issued and outstanding; and (iv) no Company Common Stock was subject to issuance upon exercise of outstanding options. All (A) issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and non-assessable and are not subject to preemptive or similar rights and (B) outstanding Company Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive or similar rights (each except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies). Except for wholly-owned subsidiaries formed in connection with the Transactions, as set forth in the Business Combination Agreement, as of the date hereof, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any Company Common Stock or other equity interests in the Company, other than as contemplated by the Business Combination Agreement or as described in the SEC Documents. Except as described in the SEC Documents, the RTW Side Letter and the Fortress Credit Agreement (as defined in the Business Combination Agreement), there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered, and not fully waived by the holder of such securities or instruments pursuant to a written agreement or consent, by the issuance of (i) the Subscribed Shares or (ii) the shares to be issued pursuant to any Other Subscription Agreement.

 

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(q) The Other Subscription Agreements reflect the same Per Share Price and other terms and conditions with respect to the purchase of Shares that are no more favorable to the Other Subscribers than the terms of this Subscription Agreement are to the Subscriber (other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares). The RTW Subscribers will be entering into Other Subscription Agreements with substantially similar terms to this Subscription Agreement. Additionally, the RTW Subscribers will enter into the Royalty Financing Agreement, pursuant to which the RTW Subscribers will provide financing to Allurion in exchange for a security interest over the products, digital solutions and intellectual property of Allurion and the RTW Side Letter, pursuant to which the RTW Subscribers will be granted the right to convert or forfeit their Other Subscribed Shares, receive additional shares of Common Stock and designate a director of the board of directors of Pubco in accordance with the terms and conditions set forth in the RTW Side Letter (the rights and benefits set forth in the RTW Side Letter and the Royalty Financing Agreement, the “RTW Rights”). The RTW Rights shall not be deemed to provide more favorable terms and conditions than those provided to the Subscriber hereunder.

 

(r) Pubco is not, and immediately after receipt of payment for the Subscribed Shares and Other Subscribed Shares and consummation of the Transactions, will not be, an “investment company” within the meaning of the Investment Company Act.

 

(s) The Company and Pubco acknowledge that there have not been, and the Company and Pubco hereby agree that they are not relying on, any representations, warranties, covenants or agreements made to the Company or Pubco by Subscriber, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Subscriber set forth in this Subscription Agreement.

 

Section 4. Subscriber Representations and Warranties. Subscriber represents and warrants to the Company and Pubco that:

 

(a) If Subscriber is a legal entity, Subscriber (i) has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of formation or incorporation and (ii) has the requisite power and authority to enter into, and perform its obligations under, this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and capacity to enter into and perform its obligations under this Subscription Agreement.

 

(b) If Subscriber is an entity, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by the Company and Pubco, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

 

(c) The purchase of the Subscribed Shares hereunder, the compliance by Subscriber with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Subscriber that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay the Subscriber’s performance of its obligations under this Subscription Agreement, including the purchase of the Subscribed Shares.

 

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(d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act), or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable requirements set forth on Annex A hereto, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and Subscriber has sole investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided the Company and Pubco with the requested information on Annex A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares.

 

(e) Subscriber acknowledges and agrees that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act and that Pubco is not required to register the Subscribed Shares except as set forth in Section 5 of this Subscription Agreement. Subscriber acknowledges and agrees that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i)-(ii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or account entries representing the Subscribed Shares shall contain a restrictive legend to such effect. Subscriber acknowledges and agrees that the Subscribed Shares will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber acknowledges and agrees that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year following the filing of certain required information with the Commission after the Closing Date. Subscriber acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares.

 

(f) Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from Pubco. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Subscriber by the Company, Pubco, Allurion or its subsidiaries (Allurion collectively with its subsidiaries, the “Acquired Companies”) or any of its or their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company or Pubco set forth in this Subscription Agreement.

 

(g) In making its decision to purchase the Subscribed Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and the Company’s and Pubco’s representations in Section 3 of this Subscription Agreement. Subscriber has not relied on any statements or other information provided by Allurion concerning the Company, Pubco, the Acquired Companies, the Subscribed Shares, or the Subscription. Subscriber acknowledges and agrees that Subscriber has had access to, has received, and has had an adequate opportunity to review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company, Pubco, the Acquired Companies and the Transactions, and Subscriber has made its own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to Subscriber’s investment in the Subscribed Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the Company’s filings with the Commission. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares, including but not limited to information concerning the Company, Pubco, the Acquired Companies, the Business Combination Agreement, and the Subscription.

 

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(h) Subscriber acknowledges that certain information in the document titled “Allurion PIPE Deck - (February 2023) 2023.02.02 2145” located in the folder titled “PIPE Presentation” of the virtual data room related to the PIPE Transaction provided by the Company was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber further acknowledges that the information provided to Subscriber was preliminary and subject to change, including in the registration statement and the proxy statement/prospectus that Pubco intends to file with the Commission (which will include substantial additional information about the Company, Pubco, Acquired Companies and the Transactions and will update and supersede the information previously provided to Subscriber).

 

(i) Subscriber acknowledges and agrees that none of the Acquired Companies nor their respective affiliates or any of such person’s or its or their respective affiliates’ control persons, officers, directors, partners, members, managing members, managers, agents, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively, “Representatives”) has provided Subscriber with any information or advice with respect to the Subscribed Shares nor is such information or advice necessary or desired. None of the Acquired Companies or any of their respective affiliates or Representatives has made or makes any representation as to the Company or the Acquired Companies or the quality or value of the Subscribed Shares.

 

(j) Subscriber acknowledges that (i) the Company and Pubco currently have, and later may come into possession of, information regarding the Company or Pubco that is not known to Subscriber and that may be material to its determination to enter into this Subscription Agreement (“Excluded Information”), (ii) Subscriber has determined to enter into this Subscription Agreement to purchase the Subscribed Shares notwithstanding Subscriber’s lack of knowledge of the Excluded Information, and (iii) none of the Company, Pubco or the Acquired Companies shall have liability to Subscriber, and Subscriber hereby waives and releases any claims Subscriber may have against the Company, Pubco or the Acquired Companies, to the maximum extent permitted by law, with respect to the nondisclosure of the Excluded Information.

 

(k) Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and Pubco, and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and Pubco or its affiliates. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

 

(l) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the SEC Documents. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c) or an “accredited investor” as defined in Rule 501(a) under the Securities Act, (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares.

 

(m) Subscriber has analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists.

 

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

 

(o) Neither the Subscriber nor any of its affiliates, officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is (i) a person (including individual or entity) that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant governmental authorities, including, but not limited to those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or His Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), (ii) a person or entity listed on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC, or any other any Sanctions-related list of sanctioned persons maintained by OFAC, the Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state, or the United Kingdom (collectively, “Sanctions Lists”), (iii) organized, incorporated, established, located, resident or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, Afghanistan, the Crimea, the so-called Donetsk People’s Republic, or the so-called Luhansk People’s Republic regions of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, or the United Kingdom; (iv) directly or indirectly owned or controlled 50% or more by, or acting on behalf of, any such person or persons described in any of the foregoing clauses (i) through (iv); or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, (i) through (v), a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures to ensure compliance with its obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with the anti-money laundering-related laws administered and enforced by other governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with Sanctions. Subscriber further represents and warrants that (i) none of the funds held by Subscriber and used to purchase the Shares are or will be derived from transactions with or for the benefit of any Prohibited Investor, and (ii) it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.

 

(p) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in Pubco as a result of the purchase and sale of Subscribed Shares hereunder, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Pubco from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder.

 

(q) If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Company, Pubco or any of their respective affiliates (the “Transaction Parties”) for investment advice or as the Plan’s fiduciary with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares and (ii) the acquisition and holding of the Subscribed Shares will not result in a non-exempt prohibited transaction under ERISA or section 4975 of the Code.

 

(r) Subscriber has or has commitments to have and, when required to deliver payment pursuant to Section 2, Subscriber will have sufficient funds to pay the Purchase Price pursuant to Section 2.

 

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(s) Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, Pubco, the Acquired Companies or any of their respective affiliates or Representatives), other than the representations and warranties of the Company and Pubco contained in Section 3 of this Subscription Agreement, in making its investment or decision to invest in Pubco. Subscriber agrees that none of (i) any Other Subscriber pursuant to an Other Subscription Agreement or any other agreement related to the private placement of shares of Common Stock (including the controlling persons, officers, directors, partners, agents or employees of any such Subscriber) nor (ii) the Company, Pubco, the Acquired Companies or any of their respective affiliates or Representatives, shall be liable (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company, Pubco or any other person or entity), whether in contract, tort or otherwise, or have any liability or obligation to Subscriber or any Other Subscriber, or any person claiming through Subscriber or any Other Subscriber, pursuant to this Subscription Agreement or related to the private placement of the Subscribed Shares, the negotiation hereof or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of the foregoing in connection with the purchase of the Subscribed Shares.

 

(t) No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by Subscriber solely in connection with the sale of the Subscribed Shares to Subscriber.

 

(u) At all times on or prior to the Closing Date, Subscriber has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Subscribed Shares.

 

(v) Subscriber hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with Subscriber, shall, directly or indirectly, engage in any hedging activities or execute any Short Sales with respect to the securities of the Company prior to the Closing or the earlier termination of this Subscription Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

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

 

(x) Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in Pubco as a result of the purchase and sale of the Subscribed Shares.

 

(y) Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company, Allurion and Pubco.

 

(z) Subscriber acknowledges that any restatement, revision, correction or other modification of the SEC Documents to the extent resulting from the SEC Guidance shall not constitute a breach by the Company or Pubco of this Subscription Agreement.

 

(aa) Subscriber acknowledges having received and read the Risk Factors (as defined below) in the document titled “Allurion PIPE Deck - (February 2023) 2023.02.02 2145” located in the folder titled “PIPE Presentation” of the virtual data room related to the PIPE Transaction (the “Risk Factors”).

 

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Section 5. Registration of Subscribed Shares.

 

(a) Subject to Section 5(c), Pubco agrees that, within forty-five (45) calendar days following the Closing Date, Pubco will file with the Commission (at Pubco’s sole cost and expense) a registration statement registering the resale of the Subscribed Shares (the “Registration Statement”), and Pubco shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but in any event no later than ninety (90) calendar days after the Closing Date (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to one hundred twenty (120) calendar days after the Closing Date if the Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further that Pubco shall have the Registration Statement declared effective within ten (10) Business Days after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days that the Commission remains closed for. Unless otherwise agreed to in writing by Subscriber prior to the filing of the Registration Statement, Subscriber shall not be identified as a statutory underwriter in the Registration Statement; provided, that if the Commission requests that Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will have the opportunity to withdraw from the Registration Statement upon its prompt written request to Pubco. Notwithstanding the foregoing, if the Commission prevents Pubco from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Subscribed Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Subscribed Shares which is equal to the maximum number of Subscribed Shares as is permitted by the Commission. In such event, the number of Subscribed Shares or other shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares under Rule 415 under the Securities Act, Pubco shall amend the Registration Statement or file one or more new Registration Statement(s) (such amendment or new Registration Statement shall also be deemed to be a “Registration Statement” hereunder) to register such additional Subscribed Shares and cause such amendment or Registration Statement(s) to become effective as promptly as practicable after the filing thereof, but in any event no later than thirty (30) calendar days after the filing of such Registration Statement (the “Additional Effectiveness Deadline”); provided, that the Additional Effectiveness Deadline shall be extended to one hundred thirty-five (135) calendar days after the filing of such Registration Statement if such Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further, that Pubco shall have such Registration Statement declared effective within ten (10) Business Days after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days that the Commission remains closed for. Any failure by Pubco to file a Registration Statement by the Effectiveness Deadline or Additional Effectiveness Deadline shall not otherwise relieve Pubco of its obligations to file or effect a Registration Statement as set forth in this Section 5.

 

(b) Pubco agrees that, except for such times as Pubco is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, Pubco will use its commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Subscriber, including to prepare and file any post-effective amendment to such Registration Statement or a supplement to the related prospectus such that the prospectus will not include any untrue statement or a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, until the earliest to occur of (i) the date on which Subscriber ceases to hold any Subscribed Shares issued pursuant to this Subscription Agreement and (ii) the first date on which Subscriber can sell all of its Subscribed Shares issued pursuant to this Subscription Agreement (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold and without the requirement for Pubco to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (the earliest of clauses (i) and (ii), the “End Date”). Prior to the End Date, Pubco will use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; file all reports, and provide all customary and reasonable cooperation, necessary to enable Subscriber to resell Subscribed Shares pursuant to the Registration Statement; qualify the Subscribed Shares for listing on the applicable stock exchange on which the Company Class A Common Stock is then listed and update or amend the Registration Statement as necessary to include Subscribed Shares. Pubco will use its commercially reasonable efforts to (A) for so long as Subscriber holds Subscribed Shares, make and keep public information available (as those terms are understood and defined in Rule 144) and file with the Commission in a timely manner all reports and other documents required of Pubco under the Exchange Act so long as Pubco remains subject to such requirements to enable Subscriber to resell the Subscribed Shares pursuant to Rule 144, (B) at the reasonable request of Subscriber, deliver all the necessary documentation to cause Pubco’s transfer agent to remove all restrictive legends from any Subscribed Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of the Subscribed Shares, or that may be sold by Subscriber without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (C) cause its legal counsel to deliver to the transfer agent the necessary legal opinions required by the transfer agent, if any, in connection with the instruction under clause (B) upon the receipt of Subscriber representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) such counsel. Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Subscribed Shares to Pubco (or its successor) upon reasonable request to assist Pubco in making the determination described above.

 

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(c) Pubco’s obligations to include the Subscribed Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to Pubco a completed selling stockholder questionnaire in customary form that contains such information regarding Subscriber, the securities of Pubco held by Subscriber and the intended method of disposition of the Subscribed Shares as shall be reasonably requested by Pubco to effect the registration of the Subscribed Shares, and Subscriber shall execute such documents in connection with such registration as Pubco may reasonably request that are customary of a selling stockholder in similar situations, including providing that Pubco shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement (i) during any customary blackout or similar period or as permitted hereunder and (ii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of Pubco’s Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Registration Statement; provided, that Pubco shall request such information from Subscriber, including the selling stockholder questionnaire, at least five (5) Business Days prior to the anticipated date of filing the Registration Statement with the Commission. In the case of the registration effected by Pubco pursuant to this Subscription Agreement, Pubco shall, upon reasonable request, inform Subscriber as to the status of such registration. Subscriber shall not be entitled to use the Registration Statement for an underwritten offering of Subscribed Shares. Notwithstanding anything to the contrary contained herein, Pubco may delay or postpone filing of such Registration Statement, and from time to time require Subscriber not to sell under the Registration Statement or suspend the use or effectiveness of any such Registration Statement if (A) it determines in good faith that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, (B) such filing or use would materially affect a bona fide business or financing transaction of Pubco or would require premature disclosure of information that would materially adversely affect Pubco, (C) in the good faith judgment of the majority of the members of Pubco’s board of directors, such filing or effectiveness or use of such Registration Statement would be seriously detrimental to Pubco, or (D) the majority of the board determines to delay the filing or initial effectiveness of, or suspend use of, a Registration Statement and such delay or suspension arises out of, or is a result of, or is related to or is in connection with the SEC Guidance or future Commission guidance directed at special purpose acquisition companies, or any related disclosure or related matters (each such circumstance, a “Suspension Event”); provided, that, (w) Pubco shall not so delay filing or so suspend the use of the Registration Statement for a period of more than sixty (60) consecutive days or more than one hundred twenty (120) total calendar days, or more than three (3) times in any three hundred sixty (360) day period and (x) Pubco shall use commercially reasonable efforts to make such registration statement available for the sale by Subscriber of such securities as soon as practicable thereafter.

 

(d) Upon receipt of any written notice from Pubco (which notice shall not contain any material non-public information regarding Pubco) of the happening of (i) an issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose, which notice shall be given no later than three (3) Business Days from the date of such event, (ii) any Suspension Event during the period that the Registration Statement is effective, which notice shall be given no later than three (3) Business Days from the date of such Suspension Event, or (iii) if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (1) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which Pubco agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Pubco that it may resume such offers and sales and (2) it will maintain the confidentiality of any information included in such written notice delivered by Pubco unless otherwise required by law, subpoena or regulatory request or requirement. If so directed by Pubco, Subscriber will deliver to Pubco or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed Shares shall not apply (w) to the extent Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.

 

(e) For purposes of this Section 5 of this Subscription Agreement, (i) “Subscribed Shares” shall mean, as of any date of determination, the Subscribed Shares (as defined in the recitals to this Subscription Agreement) and any other equity security issued or issuable with respect to the Subscribed Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, or replacement, and (ii) “Subscriber” shall include any person to which the rights under this Section 5 shall have been duly assigned.

 

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(f) Pubco shall indemnify and hold harmless Subscriber, (to the extent Subscriber is a seller under the Registration Statement), the officers, directors, members, managers, partners, agents and employees of Subscriber, each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, managers, partners, agents and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable and documented attorneys’ fees) and expenses (collectively, “Losses”) arising out of or caused by or based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are (1) based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein or Subscriber has omitted a material fact from such information or (2) result from or in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 5(d). Notwithstanding the foregoing, Pubco’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Pubco (which consent shall not be unreasonably withheld or delayed). Upon the request of Subscriber, Pubco shall provide Subscriber with an update on any threatened or asserted proceedings arising from or in connection with the transactions contemplated by this Section 5 of which Pubco receives notice in writing.

 

(g) Subscriber shall, severally and not jointly with any Other Subscriber in the offering contemplated by this Subscription Agreement, indemnify and hold harmless Pubco, its directors, officers, members, managers, partners, agents and employees, each person who controls Pubco (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, members, managers, partners, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Subscribed Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, Subscriber’s indemnification obligation shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Subscriber (which consent shall not be unreasonably withheld or delayed).

 

(h) Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement), which settlement shall not include a statement or admission of fault and culpability on the part of such indemnified party, and which settlement shall include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

(i) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the transfer of the Subscribed Shares pursuant to this Subscription Agreement.

 

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(j) If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, that the liability of Subscriber shall be limited to the net proceeds received by such Subscriber from the sale of Subscribed Shares giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), or on behalf of such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be deemed to include, subject to the limitations set forth in this Section 5, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(j) from any person or entity who was not guilty of such fraudulent misrepresentation. Notwithstanding anything to the contrary herein, in no event will any party be liable for punitive damages in connection with this Subscription Agreement or the transactions contemplated hereby.

 

Section 6. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Business Combination Agreement is terminated in accordance with its terms, (b) the mutual written agreement of the parties hereto to terminate this Subscription Agreement, with the prior written consent of Allurion, and (c) 5:00 p.m. New York City time on the Termination Date (as defined in the Business Combination Agreement), if the Closing has not occurred by such date other than as a breach of Subscriber’s obligations hereunder; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify Subscriber of the termination of the Business Combination Agreement promptly after the termination thereof. Upon the termination hereof in accordance with this Section 6, any monies paid by Subscriber to the Company in connection herewith shall promptly (and in any event within one (1) Business Day) be returned in full to Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by Subscriber, without any deduction for or on account of any tax withholding, charges or set-off, whether or not the Transactions shall have been consummated.

 

Section 7. Trust Account Waiver. Subscriber hereby acknowledges that, as described in the Company’s prospectus relating to its initial public offering (the “IPO”) dated February 4, 2021 available at www.sec.gov, the Company has established a trust account (the “Trust Account”) containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company, its public stockholders and certain other parties (including the underwriters of the IPO), and that, except as otherwise described in such prospectus, the Company may disburse monies from the Trust Account only to (x) its public stockholders in the event they elect to have their shares of Class A Common Stock redeemed for cash in connection with the consummation of the Company’s initial business combination, an amendment to its certificate of incorporation to extend the deadline by which the Company must consummate its initial business combination, or the Company’s failure to consummate an initial business combination by such deadline, (y) pay certain taxes from time to time, or (z) the Company after or concurrently with the consummation of its initial business combination. For and in consideration of the Company entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its affiliates, hereby (a) agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against the Trust Account, arising out or as a result of, in connection with or relating in any way to this Subscription Agreement, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust Account now or in the future as a result of, or arising out of, this Subscription Agreement, and (c) will not seek recourse against the Trust Account as a result of, in connection with or relating in any way to this Subscription Agreement. Subscriber acknowledges and agrees that such irrevocable waiver is a material inducement to the Company to enter into this Subscription Agreement, and further intends and understands such waiver to be valid, binding, and enforceable against Subscriber in accordance with applicable law. To the extent Subscriber commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, monetary relief against the Company or its Representatives, Subscriber hereby acknowledges and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit Subscriber (or any person claiming on Subscriber’s behalf or in lieu of Subscriber) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 7 shall be deemed to limit Subscriber’s right to distributions from the Trust Account in accordance with the Company’s certificate of incorporation in respect of any redemptions by Subscriber in respect of Class A Common Stock acquired by any means other than pursuant to this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, the provisions of this Section 7 shall survive termination of this Subscription Agreement.

 

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Section 8. Miscellaneous.

 

(a) All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, with no mail undeliverable or other rejection notice, on the date of transmission to such recipient, if sent on a Business Day prior to 5:00 p.m. New York City time, or on the Business Day following the date of transmission, if sent on a day that is not a Business Day or after 5:00 p.m. New York City time on a Business Day, (iii) one (1) Business Day after being sent to the recipient via overnight mail by reputable overnight courier service (charges prepaid), or (iv) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 8(a). A courtesy electronic copy of any notice sent by methods (i), (iii), or (iv) above shall also be sent to the recipient via electronic mail if an electronic mail address is provided in the applicable signature page hereof or to an electronic mail address as subsequently modified by written notice given in accordance with this Section 8(a).

 

(b) Subscriber acknowledges that the Company, Pubco and others, including after the Closing, Allurion, will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement; provided, however, that the foregoing clause of this Section 8(b) shall not give the Company, Pubco or Allurion any rights other than those expressly set forth herein. Prior to the Closing, Subscriber agrees to promptly notify the Company and Pubco if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. The Company and Pubco acknowledge that Subscriber and the Acquired Companies will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, the Company and Pubco agree to promptly notify Subscriber and the Acquired Companies if they become aware that any of the acknowledgments, understandings, agreements, representations and warranties of the Company or Pubco, respectively, set forth herein are no longer accurate in all material respects.

 

(c) Each of the Company, Pubco and Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

(d) Each party hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.

 

(e) Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Subscribed Shares acquired hereunder and the rights set forth in Section 5) may be transferred or assigned by Subscriber. Neither this Subscription Agreement nor any rights that may accrue to the Company or Pubco hereunder may be transferred or assigned by the Company or Pubco without the prior written consent of Subscriber, other than in connection with the Transactions. Notwithstanding the foregoing, Subscriber may assign all or a portion of its rights and obligations under this Subscription Agreement to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber) upon written notice to the Company and Pubco or, with the Company’s and Pubco’s prior written consent, to another person; provided, that in the case of any such assignment, the assignee(s) shall become a Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber provided for herein to the extent of such assignment and provided further that no such assignment shall relieve the assigning Subscriber of its obligations hereunder if any such assignee fails to perform such obligations, unless the Company and Pubco has given their prior written consent to such relief.

 

(f) All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.

 

(g) The Company and Pubco may request from Subscriber such additional information as the Company or Pubco may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares and to register the Subscribed Shares for resale, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that the Company and Pubco agree to keep any such information provided by Subscriber confidential, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange. Subscriber acknowledges that the Company and Pubco may file a form of this Subscription Agreement with the Commission as an exhibit to a current or periodic report of the Company or Pubco, a proxy statement of the Company or a registration statement of Pubco.

 

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(h) This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto.

 

(i) This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

(j) Except as otherwise provided herein, this Subscription Agreement is intended for the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Except as set forth in Section 4, Section 5, Section 6, Section 8(b), Section 8(c), Section 8(e), Section 8(h) and this Section 8(j) with respect to the persons specifically referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.

 

(k) The parties hereto acknowledge and agree that (i) this Subscription Agreement is being entered into in order to induce the Company and Pubco to execute and deliver the Business Combination Agreement and (ii) irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that the Company and Pubco shall be entitled to specifically enforce Subscriber’s obligations to fund the Subscription and the provisions of the Subscription Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree: (x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert that a remedy of specific enforcement pursuant to this Section 8(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

 

(l) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

 

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

 

(n) This Subscription Agreement may be executed and delivered in one or more counterparts (including by electronic mail, in .pdf or other electronic submission) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

 

(o) This Subscription Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other state.

 

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(p) EACH PARTY AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS SUBSCRIPTION AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBSCRIPTION AGREEMENT.

 

(q) The parties agree that all disputes, legal actions, suits and proceedings arising out of or relating to this Subscription Agreement must be brought exclusively in the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware or, in the event each federal court within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State of Delaware) (collectively the “Designated Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit or proceeding with respect to this Subscription Agreement may be brought in any other forum. Each party hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the parties also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 8(a) of this Subscription Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the parties have submitted to jurisdiction as set forth above.

 

(r) This Subscription Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Subscription Agreement, or the negotiation, execution or performance of this Subscription Agreement, may only be brought against the entities that are expressly named as parties hereto.

 

(s) The Company shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Subscription Agreement, file with the Commission a Current Report on Form 8-K (the “Disclosure Document”) disclosing all material terms of this Subscription Agreement and the Other Subscription Agreements and the transactions contemplated hereby and thereby, the Transactions and any other material, nonpublic information that the Company has provided to Subscriber at any time prior to the filing of the Disclosure Document and including as exhibits to the Disclosure Document, the form of this Subscription Agreement and the Other Subscription Agreement (in each case, without redaction). Upon the issuance of the Disclosure Document, to the Company’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Company or any of its affiliates, officers, directors, or employees or agents, unless otherwise agreed by Subscriber. Notwithstanding anything in this Subscription Agreement to the contrary, each of the Company and Pubco (i) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any press release, without the prior written consent of Subscriber and (ii) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Subscriber, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange, in which case of clause (A) or (B), the Company or Pubco, as applicable, shall provide Subscriber with prior written notice (including by e-mail) of such permitted disclosure, and shall reasonably consult with Subscriber regarding such disclosure. Subscriber will promptly provide any information reasonably requested by the Company or Pubco for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the Commission).

 

(t) If any change in the Common Stock shall occur between the date of this Subscription Agreement and the Closing by reason of any reclassification, recapitalization, stock split, reverse stock split, combination, exchange, or readjustment of shares, or any stock dividend, the number of Subscribed Shares issued to Subscriber hereunder shall be appropriately adjusted to reflect such change.

 

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(u) The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under this Subscription Agreement or any Other Subscriber or other investor under the Other Subscription Agreements. The decision of Subscriber to purchase Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company, Pubco, Allurion or any of their respective affiliates or subsidiaries which may have been made or given by any Other Subscriber or investor or by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or Other Subscriber or other investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and any Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and any Other Subscribers or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.

 

(v) The headings herein are for convenience only, do not constitute a part of this Subscription Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Subscription Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rules of strict construction will be applied against any party. Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Subscription Agreement, (ii) each accounting term not otherwise defined in this Subscription Agreement has the meaning assigned to it in accordance with GAAP, (iii) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iv) the use of the word “including” in this Subscription Agreement shall be by way of example rather than limitation, and (v) the word “or” shall not be exclusive.

 

[Signature pages follow.]

 

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IN WITNESS WHEREOF, the Company and Pubco have accepted this Subscription Agreement as of the date first set forth above.

 

  COMPUTE HEALTH ACQUISITION CORP.
     
  By:  
    Name:
    Title:
     
  Address for Notices:
   
  1100 North Market Street
  4th Floor
  Wilmington, DE 19890
  Attention:    Joshua Fink
            Jean Nehmé
  Email:         jfink@ophir-holdings.com
            nehmejean3@gmail.com
     
  with a copy (not to constitute notice) to:
   
  Skadden, Arps, Slate, Meagher & Flom LLP
  One Manhattan West
  New York, New York 10001
  Attention:    Howard Ellin
            Gregg Noel
            Richard Witzel
  Email:         howard.ellin@skadden.com
            gregg.noel@skadden.com
            richard.witzel@skadden.com

 

[Signature Page to Subscription Agreement]

 

 

 

  ALLURION TECHNOLOGIES HOLDINGS, INC.
     
  By:
    Name:
    Title:
     
  Address for Notices:
     
  with a copy (not to constitute notice) to:
     
  Goodwin Procter LLP
  100 Northern Avenue
  Boston, MA 02210
  Attention:   Danielle M. Lauzon
           Paul R. Rosie
  Email:        dlauzon@goodwinlaw.com        prosie@goodwinlaw.com

 

[Signature Page to Subscription Agreement]

 

 

 

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

 

Name of Subscriber:   State/Country of Formation or Domicile:
     
By:  _______________________________________    
Name:  _____________________________________    
Title:  ______________________________________    
     
Name in which Subscribed Shares are to be registered (if different):   Date: ________, 2023
     
Subscriber’s EIN:    
     
Entity Type (e.g., corporation, partnership, trust, etc.):    
     
Business Address-Street:   Mailing Address-Street (if different):
     
City, State, Zip:   City, State, Zip:
     
Attn:  ______________________________________   Attn:   _____________________________________
     
Telephone No.:   Telephone No.:
     
Email for notices:   Email for notices (if different):
     
Number of Shares of Common Stock subscribed for:    
     
Aggregate Purchase Price: $   Price Per Share: $7.04

 

[Signature Page to Subscription Agreement]

 

 

 

Annex A

ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER

 

This Annex A should be completed and signed by Subscriber
and constitutes a part of the Subscription Agreement.

 

1.QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable)

 

Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (a “QIB”)

 

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

 

**OR**

 

2.ACCREDITED INVESTOR STATUS (Please check the box)

 

Subscriber is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.”

 

**AND**

 

3.AFFILIATE STATUS
(Please check the applicable box)

 

SUBSCRIBER:

 

☐ is:

 

☐ is not:

 

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

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”

 

Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company;

 

Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state;

 

 

 

 

Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act;

 

Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”;

 

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

 

Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act;

 

Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000;

 

Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment;

 

Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or

 

Any entity in which all of the equity owners are “accredited investors”.

 

Specify which tests:

 

Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;

 

 

 

 

Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability;

 

Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;

 

Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor status; or

 

Any natural person who is a “knowledgeable employee,” as defined in the Investment Company Act, of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act.

 

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

 

  SUBSCRIBER:
  Print Name:
     
  By:               
  Name:  
  Title:  

 

 

 

 

Annex B

 

RTW SIDE LETTER

 

 

 

 

 

 

Exhibit 10.6

 

PRIVATE & CONFIDENTIAL

 

SUBSCRIPTION AGREEMENT

 

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on February, 2023, by and among Compute Health Acquisition Corp., a Delaware corporation (the “Company”), Allurion Technologies Holdings, Inc., a Delaware corporation (“Pubco”) and the undersigned subscriber (“Subscriber”).

 

WHEREAS, concurrently with the execution of this Subscription Agreement, the Company, Pubco, Compute Health Corp., a Delaware corporation (“Merger Sub I”), Compute Health LLC, a Delaware limited liability company (“Merger Sub II” and together with Merger Sub I, the “Merger Subs”), Allurion Technologies, Inc., a Delaware corporation (“Allurion”), are, together with the other parties thereto, entering into a definitive agreement providing for a business combination between the Company and Allurion (as amended, modified, supplemented or waived from time to time, the “Business Combination Agreement” and the transactions contemplated by the Business Combination Agreement, the “Transactions”), pursuant to which, among other things, in the manner, and on the terms and subject to the conditions and exclusions set forth therein, (i) the Company will merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the surviving company in the CPUH Merger and, after giving effect to such merger, becoming the sole owner of each Merger Sub, (ii) Merger Sub I will merge with and into Allurion (the “Intermediate Merger”), with Allurion surviving as the surviving company in the Intermediate Merger (Allurion, in its capacity as the surviving company of the Intermediate Merger, the “Intermediate Surviving Corporation”) and, after giving effect to such merger, becoming a wholly-owned subsidiary of Pubco and (iii) the Intermediate Surviving Corporation will merge with and into Merger Sub II (the “Final Merger” and, collectively with the CPUH Merger and the Intermediary Merger, the “Mergers”), with Merger Sub II surviving as the surviving company in the Final Merger;

 

WHEREAS, in connection with the Transactions, Subscriber desires to subscribe for and purchase from Pubco, immediately prior to the consummation of the Transactions, that number of shares of Pubco’s common stock, par value $0.0001 per share (the “Common Stock”), set forth on the signature page hereto (the “Subscribed Shares”) for a purchase price of $7.04 per share (the “Per Share Price” and the aggregate of such Per Share Price for all Subscribed Shares being referred to herein as the “Purchase Price”), and Pubco desires to issue and sell to Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to Pubco;

 

WHEREAS, on or about the date of this Subscription Agreement, the Company and Pubco are entering into (i) subscription agreements (the “Other Subscription Agreements” and together with the Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Subscribers” and together with Subscriber, the “Subscribers”), pursuant to which such Subscribers have agreed to purchase shares of Common Stock on the Closing Date (as defined below), at the Per Share Price (the shares of the Other Subscribers, the “Other Subscribed Shares” and the transaction, the “PIPE Transaction”) and (ii) a side letter (the “RTW Side Letter”) with RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd. and RTW Venture Fund Limited (collectively, the “RTW Subscribers”), pursuant to which the RTW Subscribers, in consideration for their entry into Other Subscription Agreements and the Royalty Financing Agreement (each as defined in the RTW Side Letter), will receive the rights and benefits set forth in the RTW Side Letter, attached hereto as Annex B; and

 

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

 

Section 1. Subscription. Subject to the terms and conditions hereof, Subscriber, severally and not jointly with any of the Other Subscribers, hereby agrees that at the Closing (as defined below), to irrevocably subscribe for and purchase from Pubco, and Pubco hereby agrees to issue and sell to Subscriber, the Subscribed Shares (such subscription and issuance, the “Subscription”).

 

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Section 2. Closing.

 

(a) The consummation of the Subscription contemplated hereby (the “Closing”) shall occur on the closing date of the Transactions (the “Closing Date”), following the CPUH Merger and immediately prior to or substantially concurrently with the consummation of the Intermediate Merger.

 

(b) At least five (5) Business Days before the anticipated Closing Date, the Company shall deliver written notice to Subscriber (the “Closing Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price to the Company. No later than two (2) Business Days prior to the Closing Date as set forth in the Closing Notice, Subscriber shall deliver the Purchase Price for the Subscribed Shares by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice, and such funds shall be held by the Company in escrow, segregated from and not comingled with the other funds of the Company (and in no event will such funds be held in the Trust Account (as defined below)), until the Closing Date. Upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 2, Pubco shall deliver to Subscriber (i) on the Closing Date, the Subscribed Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under this Subscription Agreement or applicable securities laws), in the name of Subscriber (or its nominee or custodian in accordance with its delivery instructions) (and the Purchase Price shall be released from escrow automatically and without further action by Pubco or Subscriber), and (ii) as promptly as practicable after the Closing, evidence from Pubco’s transfer agent of the issuance to Subscriber of the Subscribed Shares on and as of the Closing Date.

 

(c) Notwithstanding Section 2(b), if Subscriber informs the Company (1) that it is an investment company registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), (2) that it is advised by an investment adviser subject to regulation under the Investment Advisers Act of 1940, as amended, or (3) that its internal compliance policies and procedures so require it, then, in lieu of the settlement procedures in Section 2(b), the following shall apply: (i) no later than two (2) Business Days prior to the Closing Date as set forth in the Closing Notice, Subscriber shall provide the Company such information that the Company reasonably requests in order for Pubco to issue the Subscribed Shares, including, without limitation, the name of the person in whose name the Subscribed Shares are to be issued (or a nominee as indicated by Subscriber) and a duly executed Internal Revenue Service Form W-9 or W-8, as applicable, (ii) upon confirmation of Subscriber’s available funds necessary to initiate the wiring of the Purchase Price for the Subscribed Shares, but prior to Subscriber’s release of its payment of the Purchase Price for the Subscribed Shares, on the Closing Date, Pubco shall issue and deliver to Subscriber the Subscribed Shares, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), in book entry form in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable and a copy of the records of Pubco’s transfer agent showing Subscriber (or its nominee in accordance with its delivery instructions) as the registered holder of the Subscribed Shares on and as of the Closing Date, and (iii) at 8:00 a.m. New York City time on the Closing Date (or as soon as practicable following receipt of evidence from Pubco’s transfer agent of the issuance to Subscriber of the Subscribed Shares on and as of the Closing Date), Subscriber shall deliver the Purchase Price by wire transfer of United States dollars in immediately available funds to the account(s) specified by the Company in the Closing Notice (which shall not be escrow accounts).

 

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(d) In the event that the consummation of the Transactions does not occur within five (5) Business Days after the anticipated Closing Date specified in the Closing Notice, unless otherwise agreed to in writing by the Company and Subscriber, the Company or Pubco, as applicable, shall promptly (but in no event later than seven (7) Business Days after the anticipated Closing Date specified in the Closing Notice) return the funds so delivered by Subscriber by wire transfer in immediately available funds to the account specified by Subscriber, and any book entries shall be deemed cancelled. Notwithstanding such return or cancellation (x) a failure to close on the anticipated Closing Date shall not, by itself, be deemed to be a failure of any of the conditions to Closing set forth in this Section 2 to be satisfied or waived on or prior to the Closing Date, and (y) unless and until this Subscription Agreement is terminated in accordance with Section 6 herein, Subscriber shall remain obligated to redeliver funds to the Company or Pubco, as set forth in the Closing Notice, following the Company’s delivery to Subscriber of a new Closing Notice in accordance with this Section 2 and Subscriber, Pubco and the Company shall remain obligated to consummate the Closing upon satisfaction of the conditions set forth in this Section 2 following the Company’s delivery to Subscriber of a new Closing Notice. For the purposes of this Subscription Agreement, “Business Day” means a day, other than a Saturday or Sunday, on which commercial banks in New York, New York are open for the general transaction of business.

 

(e) The obligations of Subscriber, Pubco and the Company to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable law, waiver by the parties hereto, of the conditions that, on the Closing Date:

 

(i)all conditions precedent to the closing of the Transactions set forth in Article 6 of the Business Combination Agreement shall have been satisfied (as determined by the parties to the Business Combination Agreement) or waived in writing by the person with the authority to make such waiver (other than those conditions which, by their nature, are to be satisfied at the closing of the Transactions pursuant to the Business Combination Agreement, but subject to the satisfaction of such conditions at such closing), and following the consummation of the CPUH Merger, the closing of the additional Transactions shall be scheduled to occur substantially concurrently with the Closing;

 

(ii)the Subscribed Shares shall have been approved for listing, subject to official notice of issuance, on the Stock Exchange (as defined below), and no suspension of the listing or qualification of the offering or sale or trading on such Stock Exchange of the Subscribed Shares shall have occurred and be continuing; and

 

(iii)no order or law issued by any court of competent jurisdiction or other governmental entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by this Subscription Agreement (including the Closing) shall be in effect.

 

(f) The obligations of the Company and Pubco to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by the Company of the additional conditions that, on the Closing Date:

 

(i)except as otherwise provided under Section 2(f)(ii), all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements of Subscriber contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable;

 

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(ii)the representations and warranties of Subscriber contained in Section 4(w) of this Subscription Agreement shall be true and correct at all times on or prior to the Closing Date, and consummation of the Closing shall constitute a reaffirmation by Subscriber of such representations and warranties; and

 

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

 

(g) The obligations of Subscriber to consummate, or cause to be consummated, the transactions contemplated by this Subscription Agreement (including the Closing) are subject to the satisfaction or, if permitted by applicable Law, waiver by Subscriber of the additional conditions that, on the Closing Date:

 

(i)the Business Combination Agreement shall not have been materially amended, modified, supplemented or waived, without the written consent of Subscriber;

 

(ii)all representations and warranties of the Company and Pubco contained in this Subscription Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by the Company and Pubco of each of the representations, warranties and agreements of the Company or Pubco, respectively, contained in this Subscription Agreement as of the Closing Date, but without giving effect to consummation of the Transactions, or as of such earlier date, as applicable, except, in each case, where the failure of such representations and warranties to be true and correct (whether as of the Closing Date or such earlier date), taken as a whole, does not result in a Company Material Adverse Effect or Pubco Material Adverse Effect; and

 

(iii)the Company and Pubco shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by the Company or Pubco, respectively, at or prior to the Closing.

 

(h) Prior to or at the Closing, Subscriber shall deliver to the Company and Pubco all such other information as is reasonably requested in order for Pubco to issue the Subscribed Shares to Subscriber, including, without limitation, the legal name of the person in whose name the Subscribed Shares are to be issued (or Subscriber’s nominee in accordance with its delivery instructions) and a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.

 

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Section 3. Company and Pubco Representations and Warranties. Each of the Company, solely with respect to the representations and warranties set forth below relating to the Company, and Pubco, solely with respect to the representations and warranties set forth below relating to Pubco, represents and warrants, severally and not jointly, to Subscriber that:

 

(a) The Company (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Company Material Adverse Effect. For purposes of this Subscription Agreement, a “Company Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Company that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay the Company’s performance of (x) its obligations under this Subscription Agreement or (y) the Transactions.

 

(b) Pubco (i) is validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Pubco Material Adverse Effect. For purposes of this Subscription Agreement, a “Pubco Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Pubco that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay Pubco’s performance of (x) its obligations under this Subscription Agreement, including the issuance and sale of the Subscribed Shares, or (y) the Transactions.

 

(c) When issued pursuant to this Subscription Agreement, the Subscribed Shares have been duly authorized and, when issued and delivered to Subscriber (or its nominee or custodian in accordance with its delivery instructions) against full payment therefor in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under this Subscription Agreement, the governing and organizational documents of Pubco or applicable securities laws), and will not have been issued in violation of, or subject to, any preemptive or similar rights created under the Company’s governing and organizational documents or the laws of the State of Delaware.

 

(d) This Subscription Agreement has been duly authorized, validly executed and delivered by the Company and Pubco, and assuming the due authorization, execution and delivery of the same by Subscriber, this Subscription Agreement shall constitute the valid and legally binding obligation of the Company and Pubco, enforceable against the Company and Pubco in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

 

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(e) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, the execution and delivery of this Subscription Agreement, the compliance by the Company with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) the organizational documents of the Company, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Company Material Adverse Effect.

 

(f)   Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, the execution and delivery of this Subscription Agreement, the issuance and sale of the Subscribed Shares by Pubco hereunder, the compliance by Pubco with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Pubco pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Pubco is a party or by which Pubco is bound or to which any of the property or assets of Pubco is subject, (ii) the organizational documents of Pubco, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Pubco or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Pubco Material Adverse Effect.

 

(g) Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 4 of this Subscription Agreement, neither the Company nor Pubco is required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including any stock exchange on which the Common Stock will be listed (the “Stock Exchange”) or other person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares by Pubco), other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement (as defined below) pursuant to Section 5 below, (iii) filings required by the Securities Act of 1933, as amended (the “Securities Act”), Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules of United States Securities and Exchange Commission (the “Commission”), including the registration statement on Form S-4 with respect to the Transactions and the proxy statement/prospectus included therein, (iv) filings required by the Stock Exchange, including with respect to obtaining stockholder approval of the Transactions, (v) filings required to consummate the Transactions as provided under the Business Combination Agreement, (vi) the filing of notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, (vii) filings in connection with or as a result of the SEC Guidance (as defined below) and (viii) those the failure of which to obtain would not have a Company Material Adverse Effect or a Pubco Material Adverse Effect.

 

(h) Except for such matters as have not had and would not reasonably be expected to have a Company Material Adverse Effect or Pubco Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Company or Pubco, threatened in writing against the Company or Pubco or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company or Pubco.

 

(i) Assuming the accuracy of Subscriber’s representations and warranties set forth in Section 4 of this Subscription Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Subscribed Shares by the Company and Pubco to Subscriber.

 

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(j) None of the Company, Pubco or any person acting on their behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Subscribed Shares. The Subscribed Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. None of the Company, Pubco or any person acting on their behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection with the offer and sale by Pubco of the Subscribed Shares as contemplated hereby or the Other Subscribed Shares as contemplated by the Other Subscription Agreements or (ii) cause the offering of the Subscribed Shares pursuant to this Subscription Agreement or the Other Subscribed Shares pursuant to the Other Subscription Agreements to be integrated with prior offerings by the Company or Pubco for purposes of the Securities Act or any applicable stockholder approval provisions. None of the Company, Pubco or any person acting on their behalf has offered or sold or will offer or sell any securities, or has taken or will take any other action, which would reasonably be expected to subject the offer, issuance or sale of the Subscribed Shares or the Other Subscribed Shares, as contemplated hereby, to the registration provisions of the Securities Act.

 

(k) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to Pubco, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) of the Securities Act is applicable.

 

(l) The Company is in all material respects in compliance with, and has not received any written communication from a governmental entity that alleges that the Company is not in compliance with, or is in default or violation of, the applicable provisions of (i) the Securities Act, (ii) the Exchange Act, (iii) the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder, (iv) the rules and regulations of the Commission, and (v) the rules of the Stock Exchange, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Pubco is in all material respects in compliance with, and has not received any written communication from a governmental entity that alleges that Pubco is not in compliance with, or is in default or violation of, the applicable provisions of (i) the Securities Act, (ii) the Exchange Act, (iii) the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder, (iv) the rules and regulations of the Commission, and (v) the rules of the Stock Exchange, except, in each case, where such non-compliance, default, or violation would not, individually or in the aggregate, reasonably be expected to have a Pubco Material Adverse Effect. For the avoidance of doubt, this representation and warranty shall not apply to the extent any of the foregoing matters arise from or relate to the SEC Guidance (as defined below).

 

(m) When the Subscribed Shares are issued pursuant to this Subscription Agreement, the Common Stock will be eligible for clearing through The Depository Trust Company (the “DTC”), through its Deposit/Withdrawal At Custodian (DWAC) system, and Pubco will be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the Common Stock. Pubco’s transfer agent will be a participant in DTC’s Fast Automated Securities Transfer Program. The Common Stock will not be, and will not have been at any time, subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of shares of Common Stock through DTC.

 

(n) Except for Credit Suisse Securities (USA) LLC (the “Placement Agent”), no broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Subscribed Shares to Subscriber. The Company is solely responsible for the payment of any fees, costs, expenses and commissions of the Placement Agent.

 

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(o) As of their respective dates, each form, report, statement, schedule, prospectus, proxy, registration statement and other document required to be filed by the Company with the Commission prior to the date hereof (collectively, as amended and/or restated since the time of their filing, the “SEC Documents”) complied in all material respects with the requirements of the Securities Act and the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Documents, as of their respective dates (or if amended, restated, or superseded by a filing prior to the closing of the Transactions, on the date of such filing), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents (or if amended, restated, or superseded by a filing prior to the closing of the Transactions, on the date of such filing) comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments, and such consolidated financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”) (except as may be disclosed therein or in the notes thereto, and except that the unaudited financial statements may not contain all footnotes required by GAAP). A copy of each SEC Document is available to each Subscriber via the Commission’s EDGAR system. There are no material outstanding or unresolved comments in comment letters from the staff of the Division of Corporation Finance of the Commission with respect to any of the SEC Documents as of the date hereof. Notwithstanding the foregoing, this representation and warranty shall not apply to any statement or information in the SEC Documents that relates to (i) the topics referenced in the Commission’s “Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies” on April 12, 2021 or (ii) the classification of shares of the Company’s common stock as permanent or temporary equity, or any subsequent guidance, statements or interpretations issued by the Commission or the staff of the Commission, including guidance, statements or interpretations relating to the foregoing or to other accounting matters, including matters relating to initial public offering securities or expenses (collectively, the “SEC Guidance”), and no correction, amendment or restatement of any of the Company’s SEC Documents due to the SEC Guidance shall be deemed to be a breach of any representation or warranty by the Company or Pubco.

 

(p) As of the date hereof, the authorized share capital of the Company consists of 333,000,000 shares of stock, consisting of (i) 300,000,000 shares of Class A common stock, par value $0.0001 per share (the “Company Class A Common Stock”), (ii) 30,000,000 shares of Class B common stock, par value $0.0001 per share (the “Company Class B Common Stock” and together with the Company Class A Common Stock, the “Company Common Stock”), and (iii) 3,000,000 shares of preferred stock, par value $0.0001 per share (the “Company Preferred Stock”). As of the date hereof and prior to giving effect to the Transactions: (i) 9,223,194 shares of Company Class A Common Stock were issued and outstanding; (ii) 21,562,500 shares of Company Class B Common Stock were issued and outstanding; (iii) 21,562,500 warrants, each exercisable to purchase one share of Company Class A Common Stock at an initial exercise price of $11.50 per share, and 12,833,333 private placement warrants, each exercisable to purchase one share of Company Class A Common Stock at an initial exercise price of $11.50 per share (together “Company Warrants”), were issued and outstanding; and (iv) no Company Common Stock was subject to issuance upon exercise of outstanding options. All (A) issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, are fully paid and non-assessable and are not subject to preemptive or similar rights and (B) outstanding Company Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive or similar rights (each except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies). Except for wholly-owned subsidiaries formed in connection with the Transactions, as set forth in the Business Combination Agreement, as of the date hereof, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any Company Common Stock or other equity interests in the Company, other than as contemplated by the Business Combination Agreement or as described in the SEC Documents. Except as described in the SEC Documents, the RTW Side Letter and the Fortress Credit Agreement (as defined in the Business Combination Agreement), there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered, and not fully waived by the holder of such securities or instruments pursuant to a written agreement or consent, by the issuance of (i) the Subscribed Shares or (ii) the shares to be issued pursuant to any Other Subscription Agreement.

 

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(q) The Other Subscription Agreements reflect the same Per Share Price and other terms and conditions with respect to the purchase of Shares that are no more favorable to the Other Subscribers than the terms of this Subscription Agreement are to the Subscriber (other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares). The RTW Subscribers will be entering into Other Subscription Agreements with substantially similar terms to this Subscription Agreement. Additionally, the RTW Subscribers will enter into the Royalty Financing Agreement, pursuant to which the RTW Subscribers will provide financing to Allurion in exchange for a security interest over the products, digital solutions and intellectual property of Allurion and the RTW Side Letter, pursuant to which the RTW Subscribers will be granted the right to convert or forfeit their Other Subscribed Shares, receive additional shares of Common Stock and designate a director of the board of directors of Pubco in accordance with the terms and conditions set forth in the RTW Side Letter (the rights and benefits set forth in the RTW Side Letter and the Royalty Financing Agreement, the “RTW Rights”). The RTW Rights shall not be deemed to provide more favorable terms and conditions than those provided to the Subscriber hereunder.

 

(r) Pubco is not, and immediately after receipt of payment for the Subscribed Shares and Other Subscribed Shares and consummation of the Transactions, will not be, an “investment company” within the meaning of the Investment Company Act.

 

(s) The Company and Pubco acknowledge that there have not been, and the Company and Pubco hereby agree that they are not relying on, any representations, warranties, covenants or agreements made to the Company or Pubco by Subscriber, any of its affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Subscriber set forth in this Subscription Agreement.

 

Section 4. Subscriber Representations and Warranties. Subscriber represents and warrants to the Company and Pubco that:

 

(a) If Subscriber is a legal entity, Subscriber (i) has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of formation or incorporation and (ii) has the requisite power and authority to enter into, and perform its obligations under, this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and capacity to enter into and perform its obligations under this Subscription Agreement.

 

(b) If Subscriber is an entity, this Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by the Company and Pubco, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

 

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(c) The purchase of the Subscribed Shares hereunder, the compliance by Subscriber with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Subscriber that, individually or in the aggregate, would reasonably be expected to materially impair or materially delay the Subscriber’s performance of its obligations under this Subscription Agreement, including the purchase of the Subscribed Shares.

 

(d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), or (7) under the Securities Act), or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable requirements set forth on Annex A hereto, (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and Subscriber has sole investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided the Company and Pubco with the requested information on Annex A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares.

 

(e) Subscriber acknowledges and agrees that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act and that Pubco is not required to register the Subscribed Shares except as set forth in Section 5 of this Subscription Agreement. Subscriber acknowledges and agrees that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Pubco or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of clauses (i)-(ii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or account entries representing the Subscribed Shares shall contain a restrictive legend to such effect. Subscriber acknowledges and agrees that the Subscribed Shares will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, Subscriber may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber acknowledges and agrees that the Subscribed Shares will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year following the filing of certain required information with the Commission after the Closing Date. Subscriber acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares.

 

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(f) Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from Pubco. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Subscriber by the Company, Pubco, Allurion or its subsidiaries (Allurion collectively with its subsidiaries, the “Acquired Companies”), the Placement Agent, any of its or their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Transactions or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Company or Pubco set forth in this Subscription Agreement. Subscriber acknowledges that no disclosure or offering document provided to or reviewed by Subscriber in connection with the Subscription has been prepared by the Placement Agent.

 

(g) In making its decision to purchase the Subscribed Shares, Subscriber has relied solely upon an independent investigation made by Subscriber and the Company’s and Pubco’s representations in Section 3 of this Subscription Agreement. Subscriber has not relied on any statements or other information provided by Allurion or the Placement Agent concerning the Company, Pubco, the Acquired Companies, the Subscribed Shares, or the Subscription. Subscriber acknowledges and agrees that Subscriber has had access to, has received, and has had an adequate opportunity to review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to the Company, Pubco, the Acquired Companies and the Transactions, and Subscriber has made its own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to Subscriber’s investment in the Subscribed Shares. Without limiting the generality of the foregoing, Subscriber acknowledges that it has reviewed the Company’s filings with the Commission. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares, including but not limited to information concerning the Company, Pubco, the Acquired Companies, the Business Combination Agreement, and the Subscription.

 

(h) Subscriber acknowledges that certain information in the document titled “Allurion PIPE Deck - (February 2023) 2023.02.02 2145” located in the folder titled “PIPE Presentation” of the virtual data room related to the PIPE Transaction provided by the Company was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber acknowledges that such information and projections were prepared without the participation of the Placement Agent and that the Placement Agent does not assume responsibility for independent verification of, or the accuracy or completeness of, such information and projections. Subscriber further acknowledges that the information provided to Subscriber was preliminary and subject to change, including in the registration statement and the proxy statement/prospectus that Pubco intends to file with the Commission (which will include substantial additional information about the Company, Pubco, Acquired Companies and the Transactions and will update and supersede the information previously provided to Subscriber).

 

(i) Subscriber acknowledges and agrees that none of the Acquired Companies or the Placement Agent nor its or their respective affiliates or any of such person’s or its or their respective affiliates’ control persons, officers, directors, partners, members, managing members, managers, agents, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively, “Representatives”) has provided Subscriber with any information or advice with respect to the Subscribed Shares nor is such information or advice necessary or desired. None of the Acquired Companies, the Placement Agent or any of their respective affiliates or Representatives has made or makes any representation as to the Company or the Acquired Companies or the quality or value of the Subscribed Shares. The Placement Agent and its directors, officers, employees, representatives, and controlling persons have made no independent investigation with respect to the Company, the Subscribed Shares, or the accuracy, completeness, or adequacy of any information supplied to Subscriber by the Company or on its behalf.

 

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(j) In connection with Subscriber’s investment decision and issuance of the Subscribed Shares to Subscriber, neither the Placement Agent nor any its affiliates has acted as a financial advisor or fiduciary to Subscriber.

 

(k) Subscriber acknowledges that (i) the Company, the Placement Agent and Pubco currently have, and later may come into possession of, information regarding the Company or Pubco that is not known to Subscriber and that may be material to its determination to enter into this Subscription Agreement (“Excluded Information”), (ii) Subscriber has determined to enter into this Subscription Agreement to purchase the Subscribed Shares notwithstanding Subscriber’s lack of knowledge of the Excluded Information, and (iii) none of the Company, the Placement Agent, Pubco or the Acquired Companies shall have liability to Subscriber, and Subscriber hereby waives and releases any claims Subscriber may have against the Company, and the Placement Agent, Pubco or the Acquired Companies, to the maximum extent permitted by law, with respect to the nondisclosure of the Excluded Information.

 

(l) Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and Pubco or by means of contact from the Placement Agent, and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and Pubco or its affiliates. Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

 

(m) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in the SEC Documents. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber (i) is an institutional account as defined in FINRA Rule 4512(c) or an “accredited investor” as defined in Rule 501(a) under the Securities Act, (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Subscribed Shares.

 

(n) Subscriber has analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Pubco. Subscriber acknowledges specifically that a possibility of total loss exists.

 

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

 

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(p) Neither the Subscriber nor any of its affiliates, officers, directors, managers, managing members, general partners or any other person acting in a similar capacity or carrying out a similar function is (i) a person (including individual or entity) that is the target of economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant governmental authorities, including, but not limited to those administered by the U.S. government through the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, the United Nations Security Council, the European Union, or His Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”), (ii) a person or entity listed on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, or in any Executive Order issued by the President of the United States and administered by OFAC, or any other any Sanctions-related list of sanctioned persons maintained by OFAC, the Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union, any EU member state, or the United Kingdom (collectively, “Sanctions Lists”), (iii) organized, incorporated, established, located, resident or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, Venezuela, Afghanistan, the Crimea, the so-called Donetsk People’s Republic, or the so-called Luhansk People’s Republic regions of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, the European Union or any individual European Union member state, or the United Kingdom; (iv) directly or indirectly owned or controlled 50% or more by, or acting on behalf of, any such person or persons described in any of the foregoing clauses (i) through (iv); or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, (i) through (v), a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law; provided that Subscriber is permitted to do so under applicable law. Subscriber represents that (i) if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures to ensure compliance with its obligations under the BSA/PATRIOT Act, and (ii) to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with the anti-money laundering-related laws administered and enforced by other governmental authorities. Subscriber also represents that it maintains policies and procedures reasonably designed to ensure compliance with Sanctions. Subscriber further represents and warrants that (i) none of the funds held by Subscriber and used to purchase the Shares are or will be derived from transactions with or for the benefit of any Prohibited Investor, and (ii) it maintains policies and procedures reasonably designed to ensure the funds held by Subscriber and used to purchase the Shares were legally derived and were not obtained, directly or indirectly, from a Prohibited Investor.

 

(q) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in Pubco as a result of the purchase and sale of Subscribed Shares hereunder, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Pubco from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder.

 

(r) If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Company, Pubco or any of their respective affiliates (the “Transaction Parties”) for investment advice or as the Plan’s fiduciary with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares and (ii) the acquisition and holding of the Subscribed Shares will not result in a non-exempt prohibited transaction under ERISA or section 4975 of the Code.

 

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(s) Subscriber has or has commitments to have and, when required to deliver payment pursuant to Section 2, Subscriber will have sufficient funds to pay the Purchase Price pursuant to Section 2.

 

(t) Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation (including, without limitation, the Company, Pubco, the Acquired Companies, the Placement Agent, or any of their respective affiliates or Representatives), other than the representations and warranties of the Company and Pubco contained in Section 3 of this Subscription Agreement, in making its investment or decision to invest in Pubco. Subscriber agrees that none of (i) any Other Subscriber pursuant to an Other Subscription Agreement or any other agreement related to the private placement of shares of Common Stock (including the controlling persons, officers, directors, partners, agents or employees of any such Subscriber) nor (ii) the Company, Pubco, the Acquired Companies or any of their respective affiliates or Representatives, shall be liable (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company, Pubco or any other person or entity), whether in contract, tort or otherwise, or have any liability or obligation to Subscriber or any Other Subscriber, or any person claiming through Subscriber or any Other Subscriber, pursuant to this Subscription Agreement or related to the private placement of the Subscribed Shares, the negotiation hereof or the subject matter hereof, or the transactions contemplated hereby, for any action heretofore or hereafter taken or omitted to be taken by any of the foregoing in connection with the purchase of the Subscribed Shares.

 

(u) No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by Subscriber solely in connection with the sale of the Subscribed Shares to Subscriber.

 

(v) At all times on or prior to the Closing Date, Subscriber has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Subscribed Shares.

 

(w) Subscriber hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with Subscriber, shall, directly or indirectly, engage in any hedging activities or execute any Short Sales with respect to the securities of the Company prior to the Closing or the earlier termination of this Subscription Agreement in accordance with its terms. “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

 

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

 

(y) Subscriber will not acquire a substantial interest (as defined in 31 C.F.R. Part 800.244) in Pubco as a result of the purchase and sale of the Subscribed Shares.

 

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(z) Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company, Allurion and Pubco.

 

(aa) Subscriber acknowledges that any restatement, revision, correction or other modification of the SEC Documents to the extent resulting from the SEC Guidance shall not constitute a breach by the Company or Pubco of this Subscription Agreement.

 

(bb) Subscriber acknowledges having received and read the Risk Factors (as defined below) in the document titled “Allurion PIPE Deck - (February 2023) 2023.02.02 2145” located in the folder titled “PIPE Presentation” of the virtual data room related to the PIPE Transaction (the “Risk Factors”).

 

Section 5. Registration of Subscribed Shares.

 

(a) Subject to Section 5(c), Pubco agrees that, within forty-five (45) calendar days following the Closing Date, Pubco will file with the Commission (at Pubco’s sole cost and expense) a registration statement registering the resale of the Subscribed Shares (the “Registration Statement”), and Pubco shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but in any event no later than ninety (90) calendar days after the Closing Date (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to one hundred twenty (120) calendar days after the Closing Date if the Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further that Pubco shall have the Registration Statement declared effective within ten (10) Business Days after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days that the Commission remains closed for. Unless otherwise agreed to in writing by Subscriber prior to the filing of the Registration Statement, Subscriber shall not be identified as a statutory underwriter in the Registration Statement; provided, that if the Commission requests that Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will have the opportunity to withdraw from the Registration Statement upon its prompt written request to Pubco. Notwithstanding the foregoing, if the Commission prevents Pubco from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Subscribed Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Subscribed Shares which is equal to the maximum number of Subscribed Shares as is permitted by the Commission. In such event, the number of Subscribed Shares or other shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders and as promptly as practicable after being permitted to register additional shares under Rule 415 under the Securities Act, Pubco shall amend the Registration Statement or file one or more new Registration Statement(s) (such amendment or new Registration Statement shall also be deemed to be a “Registration Statement” hereunder) to register such additional Subscribed Shares and cause such amendment or Registration Statement(s) to become effective as promptly as practicable after the filing thereof, but in any event no later than thirty (30) calendar days after the filing of such Registration Statement (the “Additional Effectiveness Deadline”); provided, that the Additional Effectiveness Deadline shall be extended to one hundred thirty-five (135) calendar days after the filing of such Registration Statement if such Registration Statement is reviewed by, and comments thereto are provided from, the Commission; provided, further, that Pubco shall have such Registration Statement declared effective within ten (10) Business Days after the date Pubco is notified (orally or in writing, whichever is earlier) by the staff of the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review; provided, further, that (i) if such day falls on a Saturday, Sunday or other day that the Commission is closed for business, the Additional Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business and (ii) if the Commission is closed for operations due to a government shutdown, the Effectiveness Deadline shall be extended by the same number of Business Days that the Commission remains closed for. Any failure by Pubco to file a Registration Statement by the Effectiveness Deadline or Additional Effectiveness Deadline shall not otherwise relieve Pubco of its obligations to file or effect a Registration Statement as set forth in this Section 5.

 

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(b) Pubco agrees that, except for such times as Pubco is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, Pubco will use its commercially reasonable efforts to cause such Registration Statement to remain effective with respect to Subscriber, including to prepare and file any post-effective amendment to such Registration Statement or a supplement to the related prospectus such that the prospectus will not include any untrue statement or a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, until the earliest to occur of (i) the date on which Subscriber ceases to hold any Subscribed Shares issued pursuant to this Subscription Agreement and (ii) the first date on which Subscriber can sell all of its Subscribed Shares issued pursuant to this Subscription Agreement (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale or the amount of such securities that may be sold and without the requirement for Pubco to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) (the earliest of clauses (i) and (ii), the “End Date”). Prior to the End Date, Pubco will use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable; file all reports, and provide all customary and reasonable cooperation, necessary to enable Subscriber to resell Subscribed Shares pursuant to the Registration Statement; qualify the Subscribed Shares for listing on the applicable stock exchange on which the Company Class A Common Stock is then listed and update or amend the Registration Statement as necessary to include Subscribed Shares. Pubco will use its commercially reasonable efforts to (A) for so long as Subscriber holds Subscribed Shares, make and keep public information available (as those terms are understood and defined in Rule 144) and file with the Commission in a timely manner all reports and other documents required of Pubco under the Exchange Act so long as Pubco remains subject to such requirements to enable Subscriber to resell the Subscribed Shares pursuant to Rule 144, (B) at the reasonable request of Subscriber, deliver all the necessary documentation to cause Pubco’s transfer agent to remove all restrictive legends from any Subscribed Shares being sold under the Registration Statement or pursuant to Rule 144 at the time of sale of the Subscribed Shares, or that may be sold by Subscriber without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions, and (C) cause its legal counsel to deliver to the transfer agent the necessary legal opinions required by the transfer agent, if any, in connection with the instruction under clause (B) upon the receipt of Subscriber representation letters and such other customary supporting documentation as requested by (and in a form reasonably acceptable to) such counsel. Subscriber agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Exchange Act, of Subscribed Shares to Pubco (or its successor) upon reasonable request to assist Pubco in making the determination described above.

 

(c) Pubco’s obligations to include the Subscribed Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to Pubco a completed selling stockholder questionnaire in customary form that contains such information regarding Subscriber, the securities of Pubco held by Subscriber and the intended method of disposition of the Subscribed Shares as shall be reasonably requested by Pubco to effect the registration of the Subscribed Shares, and Subscriber shall execute such documents in connection with such registration as Pubco may reasonably request that are customary of a selling stockholder in similar situations, including providing that Pubco shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement (i) during any customary blackout or similar period or as permitted hereunder and (ii) as may be necessary in connection with the preparation and filing of a post-effective amendment to the Registration Statement following the filing of Pubco’s Annual Report on Form 10-K for its first completed fiscal year following the effective date of the Registration Statement; provided, that Pubco shall request such information from Subscriber, including the selling stockholder questionnaire, at least five (5) Business Days prior to the anticipated date of filing the Registration Statement with the Commission. In the case of the registration effected by Pubco pursuant to this Subscription Agreement, Pubco shall, upon reasonable request, inform Subscriber as to the status of such registration. Subscriber shall not be entitled to use the Registration Statement for an underwritten offering of Subscribed Shares. Notwithstanding anything to the contrary contained herein, Pubco may delay or postpone filing of such Registration Statement, and from time to time require Subscriber not to sell under the Registration Statement or suspend the use or effectiveness of any such Registration Statement if (A) it determines in good faith that in order for the registration statement to not contain a material misstatement or omission, an amendment thereto would be needed, (B) such filing or use would materially affect a bona fide business or financing transaction of Pubco or would require premature disclosure of information that would materially adversely affect Pubco, (C) in the good faith judgment of the majority of the members of Pubco’s board of directors, such filing or effectiveness or use of such Registration Statement would be seriously detrimental to Pubco, or (D) the majority of the board determines to delay the filing or initial effectiveness of, or suspend use of, a Registration Statement and such delay or suspension arises out of, or is a result of, or is related to or is in connection with the SEC Guidance or future Commission guidance directed at special purpose acquisition companies, or any related disclosure or related matters (each such circumstance, a “Suspension Event”); provided, that, (w) Pubco shall not so delay filing or so suspend the use of the Registration Statement for a period of more than sixty (60) consecutive days or more than one hundred twenty (120) total calendar days, or more than three (3) times in any three hundred sixty (360) day period and (x) Pubco shall use commercially reasonable efforts to make such registration statement available for the sale by Subscriber of such securities as soon as practicable thereafter.

 

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(d) Upon receipt of any written notice from Pubco (which notice shall not contain any material non-public information regarding Pubco) of the happening of (i) an issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose, which notice shall be given no later than three (3) Business Days from the date of such event, (ii) any Suspension Event during the period that the Registration Statement is effective, which notice shall be given no later than three (3) Business Days from the date of such Suspension Event, or (iii) if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (1) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration Statement until Subscriber receives copies of a supplemental or amended prospectus (which Pubco agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Pubco that it may resume such offers and sales and (2) it will maintain the confidentiality of any information included in such written notice delivered by Pubco unless otherwise required by law, subpoena or regulatory request or requirement. If so directed by Pubco, Subscriber will deliver to Pubco or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed Shares shall not apply (w) to the extent Subscriber is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B) in accordance with a bona fide pre-existing document retention policy or (x) to copies stored electronically on archival servers as a result of automatic data back-up.

 

(e) For purposes of this Section 5 of this Subscription Agreement, (i) “Subscribed Shares” shall mean, as of any date of determination, the Subscribed Shares (as defined in the recitals to this Subscription Agreement) and any other equity security issued or issuable with respect to the Subscribed Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, or replacement, and (ii) “Subscriber” shall include any person to which the rights under this Section 5 shall have been duly assigned.

 

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(f) Pubco shall indemnify and hold harmless Subscriber, (to the extent Subscriber is a seller under the Registration Statement), the officers, directors, members, managers, partners, agents and employees of Subscriber, each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, managers, partners, agents and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable and documented attorneys’ fees) and expenses (collectively, “Losses”) arising out of or caused by or based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements, alleged untrue statements, omissions or alleged omissions are (1) based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein or Subscriber has omitted a material fact from such information or (2) result from or in connection with any offers or sales effected by or on behalf of Subscriber in violation of Section 5(d). Notwithstanding the foregoing, Pubco’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Pubco (which consent shall not be unreasonably withheld or delayed). Upon the request of Subscriber, Pubco shall provide Subscriber with an update on any threatened or asserted proceedings arising from or in connection with the transactions contemplated by this Section 5 of which Pubco receives notice in writing.

 

(g) Subscriber shall, severally and not jointly with any Other Subscriber in the offering contemplated by this Subscription Agreement, indemnify and hold harmless Pubco, its directors, officers, members, managers, partners, agents and employees, each person who controls Pubco (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, members, managers, partners, agents or employees of such controlling persons, to the fullest extent permitted by applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding Subscriber furnished in writing to Pubco by or on behalf of Subscriber expressly for use therein. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Subscribed Shares giving rise to such indemnification obligation. Notwithstanding the forgoing, Subscriber’s indemnification obligation shall not apply to amounts paid in settlement of any Losses or action if such settlement is effected without the prior written consent of Subscriber (which consent shall not be unreasonably withheld or delayed).

 

(h) Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement), which settlement shall not include a statement or admission of fault and culpability on the part of such indemnified party, and which settlement shall include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

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(i) The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the transfer of the Subscribed Shares pursuant to this Subscription Agreement.

 

(j) If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations; provided, however, that the liability of Subscriber shall be limited to the net proceeds received by such Subscriber from the sale of Subscribed Shares giving rise to such indemnification obligation. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by, in the case of an omission), or on behalf of such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses shall be deemed to include, subject to the limitations set forth in this Section 5, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5(j) from any person or entity who was not guilty of such fraudulent misrepresentation. Notwithstanding anything to the contrary herein, in no event will any party be liable for punitive damages in connection with this Subscription Agreement or the transactions contemplated hereby.

 

Section 6. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) such date and time as the Business Combination Agreement is terminated in accordance with its terms, (b) the mutual written agreement of the parties hereto to terminate this Subscription Agreement, with the prior written consent of Allurion, and (c) 5:00 p.m. New York City time on the Termination Date (as defined in the Business Combination Agreement), if the Closing has not occurred by such date other than as a breach of Subscriber’s obligations hereunder; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify Subscriber of the termination of the Business Combination Agreement promptly after the termination thereof. Upon the termination hereof in accordance with this Section 6, any monies paid by Subscriber to the Company in connection herewith shall promptly (and in any event within one (1) Business Day) be returned in full to Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by Subscriber, without any deduction for or on account of any tax withholding, charges or set-off, whether or not the Transactions shall have been consummated.

 

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Section 7. Trust Account Waiver. Subscriber hereby acknowledges that, as described in the Company’s prospectus relating to its initial public offering (the “IPO”) dated February 4, 2021 available at www.sec.gov, the Company has established a trust account (the “Trust Account”) containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company, its public stockholders and certain other parties (including the underwriters of the IPO), and that, except as otherwise described in such prospectus, the Company may disburse monies from the Trust Account only to (x) its public stockholders in the event they elect to have their shares of Class A Common Stock redeemed for cash in connection with the consummation of the Company’s initial business combination, an amendment to its certificate of incorporation to extend the deadline by which the Company must consummate its initial business combination, or the Company’s failure to consummate an initial business combination by such deadline, (y) pay certain taxes from time to time, or (z) the Company after or concurrently with the consummation of its initial business combination. For and in consideration of the Company entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its affiliates, hereby (a) agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against the Trust Account, arising out or as a result of, in connection with or relating in any way to this Subscription Agreement, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust Account now or in the future as a result of, or arising out of, this Subscription Agreement, and (c) will not seek recourse against the Trust Account as a result of, in connection with or relating in any way to this Subscription Agreement. Subscriber acknowledges and agrees that such irrevocable waiver is a material inducement to the Company to enter into this Subscription Agreement, and further intends and understands such waiver to be valid, binding, and enforceable against Subscriber in accordance with applicable law. To the extent Subscriber commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, monetary relief against the Company or its Representatives, Subscriber hereby acknowledges and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit Subscriber (or any person claiming on Subscriber’s behalf or in lieu of Subscriber) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. Nothing in this Section 7 shall be deemed to limit Subscriber’s right to distributions from the Trust Account in accordance with the Company’s certificate of incorporation in respect of any redemptions by Subscriber in respect of Class A Common Stock acquired by any means other than pursuant to this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, the provisions of this Section 7 shall survive termination of this Subscription Agreement.

 

Section 8. Miscellaneous.

 

(a) All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, with no mail undeliverable or other rejection notice, on the date of transmission to such recipient, if sent on a Business Day prior to 5:00 p.m. New York City time, or on the Business Day following the date of transmission, if sent on a day that is not a Business Day or after 5:00 p.m. New York City time on a Business Day, (iii) one (1) Business Day after being sent to the recipient via overnight mail by reputable overnight courier service (charges prepaid), or (iv) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 8(a). A courtesy electronic copy of any notice sent by methods (i), (iii), or (iv) above shall also be sent to the recipient via electronic mail if an electronic mail address is provided in the applicable signature page hereof or to an electronic mail address as subsequently modified by written notice given in accordance with this Section 8(a).

 

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(b) Subscriber acknowledges that the Company, the Placement Agent, Pubco and others, including after the Closing, Allurion, will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement; provided, however, that the foregoing clause of this Section 8(b) shall not give the Company, the Placement Agent, Pubco or Allurion any rights other than those expressly set forth herein. Prior to the Closing, Subscriber agrees to promptly notify the Company, the Placement Agent and Pubco if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. The Company and Pubco acknowledge that Subscriber, the Placement Agent and the Acquired Companies will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, the Company and Pubco agree to promptly notify Subscriber, the Placement Agent and the Acquired Companies if they become aware that any of the acknowledgments, understandings, agreements, representations and warranties of the Company or Pubco, respectively, set forth herein are no longer accurate in all material respects.

 

(c) The Placement Agent shall not be liable to Subscriber, whether in contract, tort, under the federal or state securities laws, or otherwise, for any action taken or omitted to be taken by the Placement Agent in connection with the Subscription. Subscriber, on behalf of itself and its affiliates, (i) hereby releases the Placement Agent in respect of any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses, or disbursements related to the Subscription and (ii) shall not commence any litigation or bring any claim against the Placement Agent in any court or any other forum which relates to, may arise out of, or is in connection with, the Subscription, except to the extent that any loss, claim, damage, or liability is found in a final judgment by a court of competent jurisdiction to have resulted from the willful misconduct, fraud, bad faith, or gross negligence of the Placement Agent or any of its directors, officers, employees representatives or controlling persons. Subscriber agrees that the foregoing release and waiver is given freely and after obtaining independent legal advice and understands such release and waiver to be valid, binding, and enforceable against Subscriber in accordance with applicable law.

 

(d) Each of the Company, the Placement Agent, Pubco and Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

 

(e) Each party hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.

 

(f) Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Subscribed Shares acquired hereunder and the rights set forth in Section 5) may be transferred or assigned by Subscriber. Neither this Subscription Agreement nor any rights that may accrue to the Company or Pubco hereunder may be transferred or assigned by the Company or Pubco without the prior written consent of Subscriber, other than in connection with the Transactions. Notwithstanding the foregoing, Subscriber may assign all or a portion of its rights and obligations under this Subscription Agreement to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber) upon written notice to the Company and Pubco or, with the Company’s and Pubco’s prior written consent, to another person; provided, that in the case of any such assignment, the assignee(s) shall become a Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber provided for herein to the extent of such assignment and provided further that no such assignment shall relieve the assigning Subscriber of its obligations hereunder if any such assignee fails to perform such obligations, unless the Company and Pubco has given their prior written consent to such relief.

 

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(g) All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.

 

(h) The Company and Pubco may request from Subscriber such additional information as the Company or Pubco may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares and to register the Subscribed Shares for resale, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that the Company and Pubco agree to keep any such information provided by Subscriber confidential, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange. Subscriber acknowledges that the Company and Pubco may file a form of this Subscription Agreement with the Commission as an exhibit to a current or periodic report of the Company or Pubco, a proxy statement of the Company or a registration statement of Pubco.

 

(i) This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto.

 

(j) This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

 

(k) Except as otherwise provided herein, this Subscription Agreement is intended for the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Except as set forth in Section 4, Section 5, Section 6, Section 8(b), Section 8(c), Section 8(e), Section 8(h) and this Section 8(j) with respect to the persons specifically referenced therein, this Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successors and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Subscription Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.

 

(l) Each of the Company and Subscriber acknowledge that the Placement Agent is a third-party beneficiary of the representations and warranties of Subscriber and of the Company contained in this Subscription Agreement.

 

(m) The parties hereto acknowledge and agree that (i) this Subscription Agreement is being entered into in order to induce the Company and Pubco to execute and deliver the Business Combination Agreement and (ii) irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that the Company and Pubco shall be entitled to specifically enforce Subscriber’s obligations to fund the Subscription and the provisions of the Subscription Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree: (x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert that a remedy of specific enforcement pursuant to this Section 8(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

 

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(n) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

 

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

 

(p) This Subscription Agreement may be executed and delivered in one or more counterparts (including by electronic mail, in .pdf or other electronic submission) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

 

(q) This Subscription Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other state.

 

(r) EACH PARTY AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS SUBSCRIPTION AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBSCRIPTION AGREEMENT.

 

23

 

 

(s) The parties agree that all disputes, legal actions, suits and proceedings arising out of or relating to this Subscription Agreement must be brought exclusively in the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware or, in the event each federal court within the State of Delaware declines to accept jurisdiction over a particular matter, any state court within the State of Delaware) (collectively the “Designated Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit or proceeding with respect to this Subscription Agreement may be brought in any other forum. Each party hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the parties also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 8(a) of this Subscription Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the parties have submitted to jurisdiction as set forth above.

 

(t) This Subscription Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Subscription Agreement, or the negotiation, execution or performance of this Subscription Agreement, may only be brought against the entities that are expressly named as parties hereto.

 

(u) The Company shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Subscription Agreement, file with the Commission a Current Report on Form 8-K (the “Disclosure Document”) disclosing all material terms of this Subscription Agreement and the Other Subscription Agreements and the transactions contemplated hereby and thereby, the Transactions and any other material, nonpublic information that the Company has provided to Subscriber at any time prior to the filing of the Disclosure Document and including as exhibits to the Disclosure Document, the form of this Subscription Agreement and the Other Subscription Agreement (in each case, without redaction). Upon the issuance of the Disclosure Document, to the Company’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Company or any of its affiliates, officers, directors, or employees or agents, unless otherwise agreed by Subscriber. Notwithstanding anything in this Subscription Agreement to the contrary, each of the Company and Pubco (i) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any press release, without the prior written consent of Subscriber and (ii) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Subscriber, except (A) as required by the federal securities laws, rules or regulations and (B) to the extent such disclosure is required by other laws, rules or regulations, at the request of the staff of the Commission or regulatory agency or under the regulations of the Stock Exchange, in which case of clause (A) or (B), the Company or Pubco, as applicable, shall provide Subscriber with prior written notice (including by e-mail) of such permitted disclosure, and shall reasonably consult with Subscriber regarding such disclosure. Subscriber will promptly provide any information reasonably requested by the Company or Pubco for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the Commission).

 

(v) If any change in the Common Stock shall occur between the date of this Subscription Agreement and the Closing by reason of any reclassification, recapitalization, stock split, reverse stock split, combination, exchange, or readjustment of shares, or any stock dividend, the number of Subscribed Shares issued to Subscriber hereunder shall be appropriately adjusted to reflect such change.

 

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(w) The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under this Subscription Agreement or any Other Subscriber or other investor under the Other Subscription Agreements. The decision of Subscriber to purchase Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company, Pubco, Allurion or any of their respective affiliates or subsidiaries which may have been made or given by any Other Subscriber or investor or by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or Other Subscriber or other investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and any Other Subscribers or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and any Other Subscribers or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.

 

(x) The headings herein are for convenience only, do not constitute a part of this Subscription Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Subscription Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rules of strict construction will be applied against any party. Unless the context otherwise requires, (i) all references to Sections, Schedules or Exhibits are to Sections, Schedules or Exhibits contained in or attached to this Subscription Agreement, (ii) each accounting term not otherwise defined in this Subscription Agreement has the meaning assigned to it in accordance with GAAP, (iii) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (iv) the use of the word “including” in this Subscription Agreement shall be by way of example rather than limitation, and (v) the word “or” shall not be exclusive.

 

[Signature pages follow.]

 

25

 

 

IN WITNESS WHEREOF, the Company and Pubco have accepted this Subscription Agreement as of the date first set forth above.

 

  COMPUTE HEALTH ACQUISITION CORP.
     
  By:  
  Name:                          
  Title:  

 

  Address for Notices:
   
  1100 North Market Street
  4th Floor  
  Wilmington, DE 19890
   
  Attention: Joshua Fink
    Jean Nehmé
  Email: jfink@ophir-holdings.com
    nehmejean3@gmail.com

 

  with a copy (not to constitute notice) to:
   
  Skadden, Arps, Slate, Meagher & Flom LLP
  One Manhattan West
  New York, New York 10001
     
  Attention: Howard Ellin
    Gregg Noel
    Richard Witzel
  Email: howard.ellin@skadden.com
    gregg.noel@skadden.com
    richard.witzel@skadden.com

 

[Signature Page to Subscription Agreement]

 

 

 

 

  ALLURION TECHNOLOGIES HOLDINGS, INC.
       
  By:  
  Name:  Shantanu Gaur
  Title: Chief Executive Officer

 

  Address for Notices:
     
  11 Huron Drive
  Natick, MA 01760
  Attention: Shantanu Gaur
  Email: sgaur@allurion.com

 

  with a copy (not to constitute notice) to:
   
  Goodwin Procter LLP
  100 Northern Avenue
  Boston, MA 02210
  Attention: Danielle M. Lauzon
    Paul R. Rosie
  Email: dlauzon@goodwinlaw.com
    prosie@goodwinlaw.com

 

[Signature Page to Subscription Agreement]

 

 

 

 

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

 

Name of Subscriber:


  State/Country of Formation or Domicile:
By:      
Name:                  
Title:          
         
Name in which Subscribed Shares are to be registered (if different):   Date: ________, 2023
     
Subscriber’s EIN:        
       
Entity Type (e.g., corporation, partnership, trust, etc.):        
       
      Mailing Address-Street (if different):
       
City, State, Zip:   City, State, Zip:
     
Attn:   Attn:          
         
Telephone No:   Telephone No.:
Email for notices:   Email for notices (if different):
     
Number of Shares of Common Stock subscribed for:      
       
Aggregate Purchase Price: $   Price Per Share: $7.04

 

[Signature Page to Subscription Agreement]

 

 

 

 

Annex A

ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER

 

This Annex A should be completed and signed by Subscriber
and constitutes a part of the Subscription Agreement.

 

1.QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable)

 

Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (a “QIB”)

 

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

 

**OR**

 

2.ACCREDITED INVESTOR STATUS (Please check the box)

 

Subscriber is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.”

 

**AND**

 

3.AFFILIATE STATUS
(Please check the applicable box)

 

SUBSCRIBER:

 

☐ is:

 

☐ is not:

 

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

 

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”

 

Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company;

 

Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state;

 

Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act;

 

 

 

 

Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000;

 

Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”;

 

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

 

Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act;

 

Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000;

 

Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment;

 

Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or

 

Any entity in which all of the equity owners are “accredited investors”.

 

Specify which tests:

 

Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;

 

Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability;

 

 

 

 

Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;

 

Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor status; or

 

Any natural person who is a “knowledgeable employee,” as defined in the Investment Company Act, of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act.

 

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

 

  SUBSCRIBER:
  Print Name:
     
     
  By:              
  Name:  
  Title:  

 

 

 

 

 

 

Exhibit 10.7

 

Compute Health Acquisition Corp.

1100 North Market Street, 4th Floor

Wilmington, DE 19890

 

February 9, 2023

 

Compute Health LLC

1100 North Market Street, 4th Floor

Wilmington, DE 19890

Attention: Chief Executive Officer

 

Allurion Technologies, Inc.

11 Huron Drive

Natick, MA 01760

Attention: Chief Executive Officer

 

RTW Master Fund, Ltd.

RTW Innovation Master Fund, Ltd.

RTW Venture Fund Limited

c/o RTW Investments, LP

40 10th Avenue, Floor 7

New York, NY 10014

Attention: Legal and Operations

Email: legalops@rtwfunds.com

 

Re: Subscription Agreements

 

Ladies and Gentlemen:

 

This letter agreement (this “Agreement”) is being entered into by and among Compute Health Acquisition Corp., a Delaware corporation (the “Company”), Allurion Technologies Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of ATI (as defined below) (“Pubco”), Compute Health LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company (“Merger Sub II”), Allurion Technologies, Inc., a Delaware corporation (“ATI”), RTW Master Fund, Ltd., an Exempted Company incorporated in the Cayman Islands with limited liability (“RTW Master”), RTW Innovation Master Fund, Ltd., an Exempted Company incorporated in the Cayman Islands with limited liability (“RTW Innovation”), and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (“RTW Venture”, and collectively with RTW Master and RTW Innovation, the “Subscribers”, and, each, a “Subscriber”), in consideration for (i) the investment by RTW Master in Pubco pursuant to that certain Subscription Agreement, dated as of even date herewith (the “RTW Master Subscription Agreement”), by and among the Company, Pubco and RTW Master, (ii) the investment by RTW Innovation in Pubco pursuant to that certain Subscription Agreement, dated as of even date herewith (the “RTW Innovation Subscription Agreement”), by and among the Company, Pubco and RTW Innovation, (iii) the investment by RTW Venture in Pubco pursuant to that certain Subscription Agreement, dated as of even date herewith (the “RTW Venture Subscription Agreement”, and collectively with the RTW Master Subscription Agreement and RTW Innovation Subscription Agreement, the “Subscription Agreements”, and, each, a “Subscription Agreement”), by and among the Company, Pubco and RTW Venture, and (iv) the financing (the “Royalty Financing”) provided by the Subscribers to Allurion (as defined below) pursuant to that certain Revenue Interest Financing Agreement, dated as of even date herewith (the “Royalty Financing Agreement”), by and among Allurion and the Subscribers. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the RTW Master Subscription Agreement.

 

 

 

 

Reference is hereby made to that certain Business Combination Agreement, dated as of even date herewith (the “Business Combination Agreement”), by and among the Company, Pubco, ATI , Merger Sub II, Compute Health Corp., a Delaware corporation (“Merger Sub I”) and together with Merger Sub II, the “Merger Subs”), pursuant to which, among other things, in the manner, and on the terms and subject to the conditions and exclusions set forth therein, (i) the Company will merge with and into Pubco (the “CPUH Merger”), with Pubco surviving as the surviving company in the CPUH Merger and, after giving effect to such merger, becoming the sole owner of each Merger Sub, (ii) Merger Sub I will merge with and into ATI (the “Intermediate Merger”), with ATI surviving as the surviving company in the Intermediate Merger (ATI, in its capacity as the surviving company of the Intermediate Merger, the “Intermediate Surviving Corporation”) and, after giving effect to such merger, becoming a wholly-owned subsidiary of Pubco and (iii) the Intermediate Surviving Corporation will merge with and into Merger Sub II (the “Final Merger” and, collectively with the CPUH Merger and the Intermediary Merger, the “Mergers”), with Merger Sub II surviving as the surviving company in the Final Merger.

 

For purposes of this Agreement, “Allurion” means, at and prior to the Final Merger, ATI or, after the Final Merger, Merger Sub II.

 

In consideration of the aggregate Purchase Price paid to Pubco by the Subscribers and the financing provided to Allurion by the Subscribers, the Company, solely in connection with Sections 1, 4, 5, 6, 7, 12, 14, 15 and 16 of this Agreement, Pubco, Merger Sub II, solely in connection with Sections 2, 3(i), 5, 8, 9, 14, 15 and 16 of this Agreement, ATI and the Subscribers agree as follows:

 

1. Most Favored Nations.

 

(a) No Other Subscriber shall have entered on or prior to the date hereof, or shall enter on or prior to the CPUH Merger, into any Other Subscription Agreement, side letter or similar agreement or comparable arrangement or understanding (written or oral) with the Company that has the effect of establishing rights or otherwise benefiting such Other Subscriber with respect to its rights and obligations as a direct or indirect investor in the Company or as a subscriber of any Other Subscribed Shares in a manner more favorable or advantageous to such Other Subscriber than the rights and obligations established in favor of the Subscribers by the Subscription Agreements (other than terms particular to the regulatory requirements of such investor or its affiliates or related funds that are mutual funds or are otherwise subject to regulations related to the timing of funding and the issuance of the related Shares). The arrangement for Omar Ishrak to serve as Lead INED (as defined below) and co-chair of the board of directors of Pubco following closing of the Business Combination (the “Closing”) shall not be deemed to provide more favorable or advantageous rights or obligations to Omar Ishrak, in his capacity as an Other Subscriber, than those provided to the Subscribers.

 

2

 

 

2. Conversion.

 

(a) If, at any time in the period commencing twelve (12) months following Closing and ending twenty-four (24) months following Closing (the “Conversion Period”):

 

(i) the volume-weighted average price (“VWAP”) per share of the Common Stock of Pubco (the “Common Stock” and such price, the “Post-Combination Share Price”) is less than $7.04, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock (the “Effective PIPE Share Price”), for the average of twenty (20) trading days (the last of such twenty (20) trading days, the “Drop Measurement Date”) within any 30-trading day period (such event, a “Stock Price Drop”); and

 

(ii) the (A) absolute value of the percentage decrease of such Stock Price Drop measured from a reference price of $10.00 per share of the Common Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock (the “Reference Share Price”), is greater than the (B) absolute value of the percentage decrease (if any) in the VWAP of iShares US Medical Devices ETF (NYSEARCA: IHI) (the “Index”) over the same time period from the Closing to the end of the Drop Measurement Date corresponding to such Stock Price Drop (for the avoidance of doubt, if, over the same time period from the Closing to the end of the Drop Measurement Date corresponding to such Stock Price Drop, the change in the VWAP of the Index is zero or the VWAP of the Index increases, then the value of the percentage decrease of the Index under clause (B) is zero);

 

then the Subscribers may, during the continuance of the Stock Price Drop and for a period of 90 days thereafter, elect to convert (an “Investment Conversion”) up to 50% (the “Convertible Percentage”) of the Purchase Price into an amount (the “Conversion Amount”) (valuing the forfeited Subscribed Shares at the Reference Share Price) of financing provided by the Subscribers to Allurion pursuant to a revenue interest financing agreement substantially in the form attached hereto as Annex A (the “Additional Revenue Interest Financing Agreement”), resulting in the forfeiture of a number of Subscribed Shares (any fraction of a share shall be rounded down to the nearest whole share) equal to the product of the Convertible Percentage that the Subscribers elected to have converted in such Investment Conversion and the Subscribed Shares. Notwithstanding anything in this Agreement to the contrary, (i) in no event shall the Conversion Amount exceed $7,500,000 and (ii) the Subscribers shall only be entitled to elect an Investment Conversion with respect to Subscribed Shares then held by the Subscribers or any Permitted Transferee(s) (as defined below) at the time of delivery of the written election in accordance with Section 2(d) below (valuing the forfeited Subscribed Shares at the Reference Share Price).

 

3

 

 

(b) For the avoidance of doubt, the VWAP measurement period commencing at the first anniversary of the Closing shall look at the Post-Combination Share Price commencing 30 trading days prior to the first anniversary of the Closing, such that a twelve (12)-month window for Investment Conversions results.

 

(c) For purposes of illustration only, if at 13 months following the Closing, (i) the average of the VWAPs of the Post-Combination Share Price over twenty (20) trading days is below $7.04 per share (e.g., has declined by 29.6% or more from the Reference Share Price of $10.00/share), and (ii) the Index has declined by less than 29.6% since the Closing, then the Subscribers may convert up to 50% of the Purchase Price, or up to $7.5 million worth of Subscribed Shares valued at $10.00 per share (or up to 750,000 Subscribed Shares), into financing provided by the Subscribers to Allurion under an Additional Revenue Interest Financing Agreement. If, for example, the Subscribers converted 26.67% of the Purchase Price, or $4 million worth of Subscribed Shares valued at $10.00 per share, then (x) the Subscribers would forfeit 400,000 Subscribed Shares and (y) the Subscribers and Allurion will enter into an Additional Revenue Interest Financing Agreement reflecting a financing of $4 million provided by the Subscribers to Allurion.

 

(d) In order to effectuate an Investment Conversion of Subscribed Shares pursuant to Section 2(a) above, the Subscribers shall (i) submit a written election to Pubco that the Subscribers elect an Investment Conversion and such written election shall state the Convertible Percentage, the number of Subscribed Shares elected to be forfeited in connection with such Investment Conversion and the Conversion Amount and (ii) surrender, along with such written election, to Pubco the certificate or certificates representing the Subscribed Shares being forfeited (if such Subscribed Shares are certificated), duly assigned or endorsed for transfer to Pubco (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen, or missing, accompanied by an affidavit of loss executed by such Subscriber. The Investment Conversion shall be deemed effective as of the date of surrender of such certificate or certificates representing such Subscribed Shares or delivery of such affidavit of loss.

 

(e) Upon the receipt by Pubco of a written election and the surrender of such certificate(s), if any, and accompanying materials, Pubco shall as promptly as practicable (but in any event within five (5) Business Days thereafter (i) cause Allurion to execute and deliver an Additional Revenue Interest Financing Agreement, pursuant to which the Subscribers shall provide a financing amount equal to the Conversion Amount to Allurion, and, if applicable, (ii) deliver to each Subscriber a certificate in the name of such Subscriber (or its nominee or custodian in accordance with in the written election) for the number of shares of Subscribed Shares (including any fractional share) represented by the certificate or certificates delivered to Pubco for Investment Conversion but otherwise not elected to be converted pursuant to the written election or deliver such balance of Subscribed Shares in book entry form in the name of each Subscriber and a copy of the records of Pubco’s transfer agent showing such Subscriber as the registered holder of such balance of Subscribed Shares. All shares of capital stock issued hereunder by Pubco shall be duly and validly issued, fully paid, and nonassessable, free and clear of all taxes, liens, charges, and encumbrances with respect to the issuance thereof.

 

4

 

 

(f) Upon the terms and subject to the conditions of this Agreement, each of Pubco, Allurion and the Subscribers shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable law to consummate the transactions contemplated by this Section 2 at the earliest practicable date, including causing any amendments to the certificate of incorporation of Pubco or to the bylaws of Pubco to be effected.

 

(g) Pubco, Allurion and the Subscribers intend to treat the Investment Conversion, and the execution of the Additional Revenue Interest Financing Agreement, as described pursuant to Section 2(a) above as (i) a transaction governed by Section 302 of the Code and (ii) a transaction separate from the Royalty Financing Agreement. Pubco, Allurion and the Subscribers agree not to take and to not cause or permit their Affiliates (as defined in the Royalty Financing Agreement, “Affiliates”) to take, any position that is inconsistent with this Section 2(g) on any tax return or for any other tax purpose unless otherwise required by applicable law.

 

(h) Pubco shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with the Subscribers in order to complete the preparation and finalization of Schedule 6.21, which Schedule 6.21 shall be consistent with the Methodology (each, as defined in, and in accordance with the procedures set forth in Section 6.21 of, the Additional Revenue Interest Financing Agreement).

 

3. Share Adjustments.

 

(a) In addition to the Subscribed Shares issuable to the Subscribers pursuant to the Subscription Agreements as set forth on the signature page of each Subscription Agreement, at the Closing (as defined in the Subscription Agreements), following the CPUH Merger and immediately prior to or substantially concurrent with the consummation of the Intermediate Merger, Pubco shall issue to the Subscribers an aggregate amount of 250,000 shares of Common Stock (the “Additional Shares”) for the consideration set forth in the Subscription Agreements, which Additional Shares shall be allocated among the Subscribers in the same proportion as the Subscribed Shares to be purchased by each Subscriber under the Subscription Agreements, subject to adjustment in accordance with Section 12 of this Agreement.

 

(b) As soon as practicable following the CPUH Stockholders Meeting (as defined in the Business Combination Agreement, the “CPUH Stockholders Meeting”), but in any event within one Business Day (as defined in the Business Combination Agreement) after the CPUH Stockholders Meeting, the Company shall deliver a written notice (the “Adjustment Notice”) to the Subscribers setting forth:

 

(i) the amount of Available Closing Cash and Net Closing Cash (as such terms are defined in the Business Combination Agreement), giving effect to the CPUH Stockholder Redemption (as defined in the Business Combination Agreement); and

 

(ii) the amount of Adjustment Shares and the Adjustment Percentage (as such terms are defined below).

 

5

 

 

(c) For purposes of this Agreement, the following terms shall have the meaning set forth below:

 

(i) “Adjustment Percentage” means (x) $100,000,000, minus Net Closing Cash (as defined in the Business Combination Agreement), divided by (y) $30,000,000, provided, that if Net Closing Cash equals or exceeds $100,000,000, then the Adjustment Percentage shall be deemed to be zero.

 

(ii) “Adjustment Shares” means a number of shares of Common Stock equal to (x) 750,000, multiplied by (y) the Adjustment Percentage, rounded down to the nearest whole share, provided, that, in no event shall the Adjustment Shares exceed 750,000 shares of Common Stock.

 

(d) Subject to the terms and conditions hereof, following the delivery of the Adjustment Notice by the Company to the Subscribers hereunder, at the Closing, following the CPUH Merger and immediately prior to or substantially concurrent with the consummation of the Intermediate Merger, Pubco shall issue to the Subscribers the Adjustment Shares, for the consideration set forth in the Subscription Agreements, which Adjustment Shares shall be allocated among the Subscribers in the same proportion as the Subscribed Shares to be purchased by each Subscriber under the Subscription Agreements, subject to adjustment in accordance with Section 12 of this Agreement.

 

(e) Pubco and Allurion hereby acknowledge and agree that the sum of (i) the Aggregate Intermediate Merger Closing Merger Consideration (as defined in the Business Combination Agreement), plus (ii) the Additional Shares, plus (iii) the Adjustment Shares, plus (iv) the number of shares of Common Stock to be issued to Fortress (as defined in the Business Combination Agreement, “Fortress”) under the Fortress Credit Agreement (as defined in the Business Combination Agreement), plus (v) the number of shares of Common Stock to be issued to Fortress under the Fortress Bridging Agreement (as defined in the Business Combination Agreement), shall not exceed 38,312,000 shares of Common Stock (subject to adjustment for stock splits, stock dividends, recapitalizations and the like).

 

(f) At the Closing, all of the representations and warranties of Pubco and the Subscribers set forth in Sections 3 and 4 of the Subscription Agreements, as applicable, shall be true and correct with respect to the purchase and sale of the Additional Shares and Adjustment Shares, if any, given as if such shares were Subscribed Shares thereunder (without giving effect to any limitation as to “materiality” or any similar limitation set forth therein) in all respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality, Pubco Material Adverse Effect or Subscriber Material Adverse Effect, as applicable, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by Pubco and each Subscriber, as applicable, of each of the representations, warranties and agreements of such party contained in the Subscription Agreements as of the Closing Date, but without giving effect to consummation of the Transactions (as defined in the Subscription Agreement), or as of such earlier date, as applicable, and Sections 3 and 4 of the Subscription Agreements are hereby incorporated by reference herein, mutatis mutandis.

 

6

 

 

(g) Pubco shall deliver to the Subscribers (i) on the Closing Date, the Additional Shares and Adjustment Shares, if any, in book entry form, free and clear of any liens or other restrictions (other than those arising under this Agreement, the Subscription Agreements or applicable securities laws), in the name of each Subscriber (or its nominee or custodian in accordance with its delivery instructions), and (ii) as promptly as practicable after the Closing, evidence from Pubco’s transfer agent of the issuance to each Subscriber of the Additional Shares and Adjustment Shares, if any, on and as of the Closing Date.

 

(h) The Subscribers shall have registration rights with respect to the Additional Shares and Adjustment Shares, if any, as provided in Section 5 of the Subscription Agreements, and Section 5 of the Subscription Agreements are hereby incorporated by reference herein, mutatis mutandis.

 

(i) The parties (i) intend that any Adjustment Shares issued pursuant to this Agreement shall be treated as an adjustment to the Purchase Price for all tax purposes and (ii) agree not to take and to not cause or permit their affiliates to take, any position that is inconsistent with this Section 3(i) on any tax return or for any other tax purpose unless otherwise required by applicable law.

 

4. Sponsor Warrants; Sponsor Shares.

 

(a) The Company, Pubco and Allurion shall enter into that certain Sponsor Support Agreement, dated as of the date hereof (the “Sponsor Support Agreement”), by and among Compute Health Sponsor LLC, a Delaware limited liability company (the “Sponsor”), the Company, Allurion, Pubco, Osama Alswailem, Hani Barhoush, Michael Harsh and Gwendolyn A. Watanabe, pursuant to which, among other things, the Sponsor agrees to recapitalize all of its shares of Class B Common Stock (as defined in the Sponsor Support Agreement, “Pre-Closing Class B Common Stock”) and CPUH Warrants (as defined in the Sponsor Support Agreement, the “CPUH Warrants”) into CPUH Class A Common Stock.

 

(b) Prior to or contemporaneous with the Closing, the Company and Allurion shall cause the transactions contemplated by the Sponsor Support Agreement (including the recapitalization of all Pre-Closing Class B Common Stock and CPUH Warrants held by Sponsor into CPUH Class A Common Stock) to have been completed which will result in the Sponsor holding 2,088,327 shares of CPUH Class A Common Stock immediately following the Founder Share Conversion (as defined in the Sponsor Support Agreement).

 

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5. Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act.

 

(a) Neither the Company nor any of its Subsidiaries (as defined in the Royalty Financing Agreement, “Subsidiary”), nor, to the Knowledge (as defined in the Royalty Financing Agreement, “Knowledge”) of the Company, any director, officer, employee, agent, Subsidiary of the Company or representative thereof, is an individual or entity that is, or is owned or controlled by, any individual or entity that is (i) currently the subject or target of any Sanctions (as defined in the Royalty Financing Agreement, “Sanctions”), (ii) included on OFAC’s List of Specially Designated Nationals, His Majesty’s Treasury’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction (as defined in the Royalty Financing Agreement, “Designated Jurisdiction”).

 

(b) Neither the Company nor, to the Knowledge of the Company, any of the Company’s directors, officers, employees or agents have, directly or indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act (the “FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any of its Subsidiaries in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor, to the Knowledge of the Company, any of its directors, officers, employees or agents have made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any Law (as defined in the Royalty Financing Agreement, “Law”), rule or regulation. The Company further represents that it has maintained, and has caused each of its Subsidiaries to maintain, systems of internal controls (including accounting systems, purchasing systems and billing systems) to ensure compliance with all Anti-Corruption Laws (as defined in the Royalty Financing Agreement, “Anti-Corruption Laws”). The Company and its Subsidiaries have conducted their business in compliance with all Anti-Corruption Laws, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

(c) To the extent applicable, the Company and each of its Subsidiaries is in compliance, with the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time.

 

8

 

 

6. Internal Controls; Independent Registered Public Accounting Firm. The Company maintains accurate books and records reflecting its assets and liabilities and maintains proper and adequate internal control over financial reporting that provide assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary to permit preparation of the financial statements of the Company and to maintain accountability for the Company’s consolidated assets, (iii) access to assets of the Company is permitted only in accordance with management’s authorization, (iv) the reporting of assets of the Company is compared with existing assets at regular intervals and (v) accounts, notes and other receivables and inventory were recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Since September 30, 2022 (the “Most Recent Balance Sheet Date”), (1) the Company has not been advised of or become aware of (A) any significant deficiencies or material weaknesses in the design or operation of the internal control over financial reporting of the Company and its subsidiaries which could adversely affect the Company's ability to record, process, summarize, and report financial data; or (B) any fraud, whether or not material, that involves management or other employees who have a role in the internal control over financial reporting of the Company or its subsidiaries; and (2) there have been no significant changes in the internal control over financial reporting of the Company or its subsidiaries or in other factors that could significantly affect such internal control over financial reporting, including any corrective actions with regard to significant deficiencies or material weaknesses. Since Most Recent Balance Sheet Date, there have been no disagreements between the Company and the Company’s independent registered public accounting firm, on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures.

 

7. Absence of Certain Changes. During the period beginning on the Most Recent Balance Sheet Date and ending on the date hereof, the Company has conducted its business only in the ordinary course of business and, since such date, there has not been any change, event, circumstance, development or effect that, individually or in the aggregate, has had, or is reasonably expected to have, a Company Material Adverse Effect.

 

8. Furnished Information.

 

(a) Allurion agrees to furnish to the Subscribers all information in its possession that is reasonably requested by the Subscribers relating to Allurion or the transactions contemplated by the Subscription Agreements and this Agreement, provided that Allurion shall not be obligated to provide information that Allurion reasonably determines in good faith (i) to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to Allurion); or (ii) the disclosure of which would adversely affect the attorney-client privilege between Allurion and its counsel.

 

(b) Notwithstanding anything in Section 4(j) of the Subscription Agreements to the contrary, in no event shall Section 4(j) of the Subscription Agreements circumvent Allurion’s disclosure obligations pursuant to, or the representations and warranties made under, the Royalty Financing Agreement.

 

9

 

 

9. Closing Conditions. In addition to the conditions set forth in Section 2(g) of each Subscription Agreement, the obligation of such Subscriber to consummate the Closing shall be subject to the satisfaction or valid waiver in writing by such Subscriber of the additional conditions that:

 

(a) on the Closing Date, all conditions precedent to the closing of the transactions contemplated by the Royalty Financing Agreement set forth in the Royalty Financing Agreement shall have been satisfied (as determined by such Subscriber) or waived in writing by such Subscriber (other than those conditions which, by their nature, are to be satisfied at the closing of the transactions contemplated by the Royalty Financing Agreement pursuant to the Royalty Financing Agreement, but subject to the satisfaction or waiver of such conditions at such closing), and

 

(b) contemporaneous with such Subscriber purchasing the Subscribed Shares, the closing of the transactions contemplated by the Royalty Financing Agreement shall have been completed (including that Allurion shall have received financing from RTW) in accordance with the terms and conditions set forth in the Royalty Financing Agreement.

 

10. Board Governance.

 

(a) The Subscribers shall have the right to designate one director (the “Designated Director”) to the Board of Directors of Pubco (“Board”), which Designated Director shall initially be Nick Lewin, until the later of (x) such time as all Obligations (as defined in the Royalty Financing Agreement) under the Royalty Financing Agreement have been paid by Allurion or (y) such time as all Obligations (as defined in any Additional Revenue Interest Financing Agreement) under such Additional Revenue Interest Financing Agreement have been paid by Allurion. Pubco shall cause the Designated Director to be nominated as a Company Independent Nominee (as defined in that certain Investor Rights and Lock-Up Agreement to be entered into at the Closings (as defined in the Business Combination Agreement) by and among Pubco and the parties listed on Schedule I thereto (the “IRA”), the final form of which is attached as Exhibit A to the Business Combination Agreement) unless the Designated Director is otherwise nominated as an Independent Director (as defined in the IRA, “Independent Director”), as a Gaur Independent Nominee (as defined in the IRA, “Gaur Independent Nominee”), or as a Remus Independent Nominee (as defined in the IRA, “Remus Independent Nominee”). The Designated Director shall have the right to be a member of any and all committees of the Board. Upon the removal, resignation or death of the initial Designated Director, the Subscribers shall have the right to designate a replacement director until the later of (x) such time as all Obligations (as defined in the Royalty Financing Agreement) under the Royalty Financing Agreement have been paid by Allurion or (y) such time as all Obligations (as defined in any Additional Revenue Interest Financing Agreement) under such Additional Revenue Interest Financing Agreement have been paid by Allurion.

 

(b) Pubco agrees that if the Designated Director does not provide confidential information of Pubco and its Subsidiaries to the Subscribers and their Affiliates and such Designated Director is not an Affiliate of any of the Subscribers, the Subscribers shall not be subject to Pubco’s insider trading policy during term of such Designated Director’s Board service. Pubco hereby agrees that, the Designated Director may only provide confidential information of Pubco to the Subscribers and their Affiliates subject to, and solely in accordance with the terms of, a confidentiality agreement in the form attached hereto as Annex B. Further, if (x) the Designated Director provides confidential information of Pubco to the Subscribers and their Affiliates or (y) Designated Director is an Affiliate of any of the Subscribers, the Subscribers shall, and shall cause their Affiliates to, purchase and sell securities of Pubco only in compliance with Pubco’s insider trading policy, a copy of which will have been provided to the Subscribers prior to the Closings (as defined in the Business Combination Agreement), with such changes (or such successor policies) as are applicable to all other directors of Pubco (or its successor).

 

10

 

 

11. Independent Director.

 

(a) Pubco agrees to cause to be nominated a lead Independent Director (the “Lead INED”) of the Board, who shall serve at all times as chair or co-chair of the Board, and who initially shall be Omar Ishrak. Pubco shall cause the Lead INED to be nominated as the Sponsor Nominee (as defined in the IRA).

 

(b) Pubco agrees, from time to time and at all times on or prior to the second (2nd) anniversary of the Closings (as defined in the Business Combination Agreement), to cause Omar Ishrak to be the Lead INED; provided, that, at the time when such annual or special meeting of stockholders at which an election of directors is held or at the time when such written consent of the stockholders to elect one or more directors is entered into, Omar Ishrak (i) has not refused and continues to refuse to stand for re-election, (ii) is not unable to discharge the duties of the Lead INED due to death or incapacity or (iii) is not ineligible to serve as the Lead INED.

 

12. Allocation. Notwithstanding anything in any Subscription Agreement to the contrary, at any time prior to the Closing, but no fewer than five (5) Business Days prior to the Closing, the Subscribers may, by notice to the Company and Pubco, re-allocate among the Subscribers the amount of Subscribed Shares to be purchased by each Subscriber; provided, that (i) the aggregate amount of Subscribed Shares to be purchased and subscribed by the Subscribers remain the same and (ii) any Subscriber receiving additional Subscribed Shares or fewer Subscribed Shares shall execute an addendum to its Subscription Agreement formalizing the change in Subscribed Shares allocated to such Subscriber.

 

13. No Lock-up. For the avoidance of doubt, all Subscribed Shares purchased by the Subscribers are purchased in a PIPE Financing (as defined in the IRA) and, as such, none of the Subscribed Shares shall be subject to any Transfer (as defined in the IRA) restrictions set forth in Section 6.1 of the IRA.

 

14. Conflicts. It is agreed that in the event of any conflict between the provisions of this Agreement and any Subscription Agreement, the provisions of this Agreement shall prevail and be given effect. It is agreed that in the event of any conflict between (a) the provisions of this Agreement (other than Section 15 (Miscellaneous)) and the Royalty Financing Agreement, such provisions of this Agreement shall prevail and be given effect, or (b) Section 15 (Miscellaneous) of this Agreement and (i) the Royalty Financing Agreement or (ii) any Additional Revenue Interest Financing Agreement, the provisions of the Royalty Financing Agreement or such Additional Revenue Interest Financing Agreement, as applicable, shall prevail and be given effect.

 

15. Miscellaneous. Sections 8(a), (e), (h), (j), (l), (m), (n), (o), (p) and (q) of the RTW Master Subscription Agreement are incorporated by reference herein, mutatis mutandis.

 

16. Assignment. Notwithstanding anything to the contrary herein, any Subscriber may assign all or a portion of its rights and obligations under this Agreement and the Subscription Agreement applicable to such Subscriber to (i) one or more of its Affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of such Subscriber) upon written notice to the Company, Pubco and Allurion or, with the prior written consent of the Company, Pubco and Allurion, to another person or (ii) one or more investment funds or accounts managed or advised by RTW Investments, LP or by the investment manager that manages or advises such Subscriber; provided, that, (a) such transferee agrees in a written instrument delivered to the Company, Pubco and Allurion to be bound by and subject to the terms of this Agreement (any such transferees, “Permitted Transferees”) and (b) if such Permitted Transferee is allocated Subscribed Shares pursuant to Section 11 of this Agreement, then such Permitted Transferee shall execute and deliver a subscription agreement to the Company and Pubco, in the form of the Subscription Agreements, in respect of such Subscribed Shares.

 

[Remainder of page intentionally left blank.]

 

11

 

 

If the above correctly reflects our understanding and agreement with respect to the foregoing matters, please so confirm by signing and returning a copy of this Agreement.

 

  Sincerely,
   
  COMPUTE HEALTH ACQUISITION CORP.
     
  By: /s/ Jean Nehme
  Name:  Jean Nehme
  Title: Co-Chief Executive Officer
     
  COMPUTE HEALTH LLC
     
  By: /s/ Joshua Fink
  Name: Joshua Fink
  Title: Secretary and Treasurer

 

Compute Health Acquisition Corp.

Allurion

RTW

Signature Page to Letter Agreement

 

 

 

 

Acknowledged and agreed to by:  
     
ALLURION TECHNOLOGIES, INC.  
       
By: /s/ Shantanu Gaur  
  Name: Shantanu Gaur  
  Title: Chief Executive Officer  
       
ALLURION TECHNOLOGIES HOLDINGS, INC.  
       
By: /s/ Shantanu Gaur  
  Name: Shantanu Gaur  
  Title: Chief Executive Officer  

 

Compute Health Acquisition Corp.

Allurion

RTW

Signature Page to Letter Agreement

 

 

 

 

Acknowledged and agreed to by:  
   
RTW MASTER FUND, LTD.  
       
By: /s/ Roderick Wong  
  Name:  Roderick Wong, M.D.  
  Title: Director  
       
RTW INNOVATION MASTER FUND, LTD.  
       
By: /s/ Roderick Wong  
  Name: Roderick Wong, M.D.  
  Title: Director  
       
RTW VENTURE FUND LIMITED  
       
By: RTW Investments, LP,  
  its Investment Manager  
       
By: /s/ Roderick Wong  
  Name: Roderick Wong, M.D.  
  Title: Director  

 

Compute Health Acquisition Corp.

Allurion

RTW

Signature Page to Letter Agreement

 

 

 

 

Annex A

 

Form of Additional Revenue Interest Financing Agreement

 

[See attached.]

 

Annex A

 

 

Annex B

 

Confidentiality Agreement

 

[See attached.]

 

 

Annex B

 

 

Exhibit 10.8

 

Execution Version

 

 

 

 

 

 

REVENUE INTEREST FINANCING AGREEMENT

 

among

 

ALLURION TECHNOLOGIES, INC.

 

and

 

 

RTW MASTER FUND, LTD., RTW INNOVATION MASTER FUND, LTD., and RTW VENTURE FUND LIMITED

 

Dated February 9, 2023

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

  Page
   
ARTICLE I DEFINED TERMS AND RULES OF CONSTRUCTION 1
   
Section 1.1 Defined Terms 1
Section 1.2 Rules of Construction 32
     
ARTICLE II REVENUE INTEREST FINANCING 33
     
Section 2.1 Investment Amount 33
Section 2.2 No Assumed Obligations 33
Section 2.3 Excluded Assets 33
     
ARTICLE III Payments On Account OF THE REVENUE INTEREST Financing 34
   
Section 3.1 Payments on Account of the Revenue Interest Financing 34
Section 3.2 Mode of Payment/Currency Exchange 35
Section 3.3 Product Payment Reports and Record Retention 36
Section 3.4 Audits 36
     
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE Company 37
   
Section 4.1 Organization 37
Section 4.2 No Conflicts 37
Section 4.3 Authorization 38
Section 4.4 Ownership 38
Section 4.5 Governmental and Third Party Authorizations 38
Section 4.6 No Litigation 39
Section 4.7 Solvency 39
Section 4.8 No Brokers’ Fees 39
Section 4.9 Compliance with Laws 39
Section 4.10 Intellectual Property Matters 40
Section 4.11 Margin Stock 42
Section 4.12 Material Contracts 42
Section 4.13 Bankruptcy 43
Section 4.14 Office Locations; Names 43
Section 4.15 Financial Statements; No Material Adverse Effect 43
Section 4.16 No Default 44
Section 4.17 Insurance 44
Section 4.18 ERISA Compliance 44
Section 4.19 Subsidiaries 45
Section 4.20 Perfection of Security Interests in the Collateral 45
Section 4.21 Sufficiency of Collateral 45
Section 4.22 Disclosure 45
Section 4.23 Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act 46
Section 4.24 Data Security; Data Privacy 46
Section 4.25 Compliance 46
Section 4.26 Labor Matters 48
Section 4.27 Taxes 48
     
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE Investor 49
   
Section 5.1 Organization 49

 

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Section 5.2 No Conflicts 49
Section 5.3 Authorization 49
Section 5.4 Governmental and Third Party Authorizations 49
Section 5.5 No Litigation 49
Section 5.6 No Brokers’ Fees 49
Section 5.7 Funds Available 49
Section 5.8 Access to Information 49
     
ARTICLE VI AFFIRMATIVE COVENANTS 50
     
Section 6.1 Collateral Matters; Guarantors. 50
Section 6.2 Update Meetings 50
Section 6.3 Notices 51
Section 6.4 Public Announcement 53
Section 6.5 Further Assurances 53
Section 6.6 IP Rights 54
Section 6.7 Existence 54
Section 6.8 Commercialization of the Products 54
Section 6.9 Financial Statements 55
Section 6.10 Payment of Obligations 55
Section 6.11 Maintenance of Properties 56
Section 6.12 Maintenance of Insurance 56
Section 6.13 Books and Records 56
Section 6.14 Use of Proceeds 56
Section 6.15 ERISA Compliance 56
Section 6.16 Compliance with Material Contracts 56
Section 6.17 Compliance with Laws 56
Section 6.18 Anti-Corruption Laws; Anti-Terrorism Laws 57
Section 6.19 Data Privacy 57
Section 6.20 Products 57
Section 6.21 Tax 58
Section 6.22 Convertible Notes 59
Section 6.23 Board Governance 59
Section 6.24 Company Assumption 59
 
ARTICLE VII NEGATIVE COVENANTS 60
   
Section 7.1 Liens 60
Section 7.2 Indebtedness 60
Section 7.3 Dispositions 60
Section 7.4 Change in Nature of Business 60
Section 7.5 Prepayment of Other Indebtedness 60
Section 7.6 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity; Certain Amendments 61
Section 7.7 Burdensome Actions 61
Section 7.8 Affiliates 61
     
ARTICLE VIII THE CLOSING 62
     
Section 8.1 Closing 62
Section 8.2 Closing Deliverables of the Company 62
Section 8.3 Conditions to the Investor’s Obligations 63

 

ii

 

 

ARTICLE IX CONFIDENTIALITY 64
   
Section 9.1 Confidentiality; Permitted Use 64
Section 9.2 Exceptions 64
Section 9.3 Permitted Disclosures 64
Section 9.4 Return of Confidential Information 64
     
ARTICLE X INDEMNIFICATION 65
   
Section 10.1 Indemnification by the Company 65
Section 10.2 Indemnification by the Investor 65
Section 10.3 Procedures 65
Section 10.4 Other Claims 66
Section 10.5 Exclusive Remedies 66
Section 10.6 Certain Limitations 66
     
ARTICLE XI EVENTS OF DEFAULT REMEDIES 67
   
Section 11.1 Remedies Upon Event of Default 67
     
ARTICLE XII MISCELLANEOUS 67
   
Section 12.1 Survival 67
Section 12.2 Specific Performance 67
Section 12.3 Notices 68
Section 12.4 Successors and Assigns 69
Section 12.5 Independent Nature of Relationship 69
Section 12.6 Expenses 69
Section 12.7 Appointment of the Agent 69
Section 12.8 Entire Agreement 70
Section 12.9 Governing Law 70
Section 12.10 Waiver of Jury Trial 70
Section 12.11 Severability 70
Section 12.12 Counterparts 71
Section 12.13 Amendments; No Waivers 71
Section 12.14 No Third Party Rights 71
Section 12.15 Table of Contents and Headings 71

 

Exhibit A Form of Press Release
Exhibit B Compliance Certificate
Exhibit C Example of Calculation of Included Product Payment Amount
Exhibit D Form of Joinder Agreement
Exhibit E Form of Intercreditor Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of Company Assumption Agreement
Exhibit H Form of Guaranty

 

iii

 

 

REVENUE INTEREST FINANCING AGREEMENT

 

This Revenue Interest Financing Agreement (this “Agreement”) dated as of February 9, 2023 (the “Effective Date”) is among Allurion Technologies, Inc., a Delaware corporation (the “Company”), and RTW Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (each and collectively, the “Investor”). Each of the Company and the Investor is referred to in this Agreement as a “Party” and collectively as the “Parties”.

 

RECITALS

 

WHEREAS, the Company is developing Products (as defined in ‎Section 1.1) for the purposes of sale in the Territory; and

 

WHEREAS, the Company desires to secure financing from the Investor, and the Investor has indicated its willingness to provide financing, upon and subject to the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto covenant and agree as follows:

 

ARTICLE I
DEFINED TERMS AND RULES OF CONSTRUCTION

 

Section 1.1 Defined Terms. The following terms, as used herein, shall have the following respective meanings:

 

Acquired Debt” means Indebtedness (a) of a Person existing at the time such Person becomes a Subsidiary (which is not also a Guarantor) through the acquisition of the Equity Interests in such Subsidiary, (b) assumed by a Subsidiary (which is not also a Guarantor) in connection with the acquisition by such Subsidiary of assets from such Person or (c) of a Person at the time such Person merges or amalgamates with or into or consolidates or otherwise combines with any Subsidiary (which is not also a Guarantor), in each case so long as (i) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary or such acquisition, merger, amalgamation or consolidation, as the case may be, (ii) no Default or Event of Default shall have occurred and be continuing or would result from such acquisition, merger, amalgamation or consolidation, as the case may be and (iii) the Company does not guarantee or assume any such Indebtedness.

 

Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or with respect to the Investor, any other investment fund or registered investment company now or hereafter existing that is controlled by one or more general partners, managing members or investment advisers of, or that shares the same management company or investment adviser with, the Investor. For purposes of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities entitled to elect the Board of Directors or management board, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative to the foregoing.

 

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Agent” has the meaning set forth in ‎Section 12.7.

 

Agreement” has the meaning set forth in the preamble.

 

Annual Net Sales” means, with respect to any Calendar Year, the aggregate amount of worldwide Net Sales for that Calendar Year.

 

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Company or any of its Affiliates from time to time concerning or relating to bribery or corruption, including without limitation the United States Foreign Corrupt Practices Act of 1977, as amended, the UK Bribery Act 2010 and other similar legislation in any other jurisdictions.

 

Anti-Terrorism Laws” means any laws, rules, regulations or orders relating to terrorism or money laundering, including without limitation Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the laws comprising or implementing the Bank Secrecy Act, the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto.

 

Applicable Law” means, with respect to any Person, all Laws, rules, regulations and orders of Governmental Authorities applicable to such Person or any of its properties or assets.

 

Applicable Tiered Percentage” means the percentage based on the applicable portion of Annual Net Sales and the measurement date as set forth in the chart below:

 

Payment Tiers based on Annual Net Sales  Prior to or on
December 31,
2026
   On or after
January 1,
2027
 
A. Portion of Annual Net Sales less than or equal to $100,000,000   6.0%   10.0%
B. Portion of Annual Net Sales exceeding $100,000,000 and less than or equal to $200,000,000   3.0%   8.0%
C. Portion of Annual Net Sales in excess of $200,000,000   0.5%   0.5%

 

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provided that if the Company does not receive Marketing Authorization from the FDA for the Gastric Balloon for the treatment of adults with obesity prior to or on June 30, 2025, the Applicable Tiered Percentage on the portion of Annual Net Sales less than or equal to $100,000,000 will increase to 12.0% beginning on July 1, 2025, and remain at 12.0% until the Company receives such Marketing Authorization from the FDA, at which time the Applicable Tiered Percentage on the portion of Annual Net Sales less than or equal to $100,000,000 would revert commencing the next Calendar Year to the scheduled Applicable Tiered Percentage at such time based on the chart above. By way of example, if such Marketing Authorization is received from the FDA at any time in 2025 after June 30, 2025, then the Applicable Tiered Percentage shall revert from 12% to 6% starting January 1, 2026, and if such Marketing Authorization is received from the FDA at any time in 2026, then the Applicable Tiered Percentage shall revert from 12% to 10% starting January 1, 2027.

 

Arbiter” has the meaning set forth in ‎Section 6.21(b).

 

Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.

 

Bankruptcy Event” means the occurrence of any of the following in respect of a Person: (a) such Person shall generally not, shall be unable to, or an admission in writing by such Person of its inability to, pay its debts as they come due or a general assignment by such Person for the benefit of creditors; (b) the filing of any petition or answer by such Person seeking to adjudicate itself as bankrupt or insolvent, or seeking for itself any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of such Person or its debts under any Applicable Law relating to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization, examination, relief of debtors or other similar Applicable Law now or hereafter in effect, or seeking, consenting to or acquiescing in the entry of an order for relief in any case under any such Applicable Law, or the appointment of or taking possession by a receiver, trustee, custodian, liquidator, examiner, assignee, sequestrator or other similar official for such Person or for any substantial part of its property; (c) corporate or other entity action taken by such Person to authorize any of the actions set forth in clause (a) or clause (b) above; or (d) without the consent or acquiescence of such Person, the commencement of an action seeking entry of an order for relief or approval of a petition for relief or reorganization or any other petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or other similar relief under any present or future bankruptcy, insolvency or similar Applicable Law, or the filing of any such petition against such Person, or, without the consent or acquiescence of such Person, the commencement of an action seeking entry of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person, in each case where such petition or order shall remain unstayed or shall not have been stayed or dismissed within ninety (90) days from entry thereof.

 

Board of Directors” means (a) with respect to a company or corporation, the board of directors of the company or corporation or any committee thereof duly authorized to act on behalf of such board, (b) with respect to a partnership, the Board of Directors of the general partner of the partnership, (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

 

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Business” means, at any time, a collective reference to the businesses operated by the Company and its Subsidiaries at such time.

 

Business Combination Agreement” means that certain Business Combination Agreement, dated as of the date hereof, among Compute Health Acquisition Corp., a Delaware corporation, Compute Health Corp., a Delaware corporation, Merger Sub 2, Parent and Allurion Technologies, Inc., a Delaware corporation, as amended, restated, supplemented or otherwise modified from time to time.

 

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by Applicable Law to remain closed.

 

Calendar Quarter” means (a) for the first calendar quarter, (i) if the Closing Date occurs before July 1, 2023, then the period beginning on the Closing Date and ending on the last day of the calendar quarter in which the Closing Date falls or (ii) if the Closing Date occurs on or after July 1, 2023, then the period beginning on July 1, 2023 and ending on September 30, 2023, and (b) thereafter each successive period of three (3) consecutive calendar months ending on December 31, March 31, June 30, September 30.

 

Calendar Year” means (a) for the first calendar year, (i) if the Closing Date occurs before July 1, 2023, then the period beginning on the Closing Date and ending on December 31, 2023 or (ii) if the Closing Date occurs on or after July 1, 2023, then the period beginning on July 1, 2023 and ending on December 31, 2023, (b) for each calendar year of the Payment Term thereafter, each successive period beginning on January 1 and ending twelve (12) consecutive calendar months later on December 31, and (c) for the last year of the Payment Term, the period beginning on January 1 of the year in which this Agreement expires or terminates and ending on the effective date of expiration or termination of this Agreement.

 

CDA” means that certain Mutual Confidentiality Agreement by and between the Company and RTW Investments, LP, effective as of November 23, 2022.

 

Change of Control” means after the Closing Date (a) the occurrence of any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding: (i) any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (ii) the Investor and their Affiliates) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of the Equity Interests representing more than 50% of the aggregate ordinary voting power in the election of the Board of Directors of the Company represented by the issued and outstanding Equity Interests of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); provided, however, that (A) a person shall not be deemed beneficial owner of, or to own beneficially, (1) any securities tendered pursuant to a tender or exchange offer made by or on behalf of such person or any of such person’s Affiliates until such tendered securities are accepted for purchase or exchange thereunder, or (2) any securities if such beneficial ownership (I) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (II) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act and (B) a transaction will not be deemed to involve a Change of Control if (x) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (y)(i) the direct or indirect holders representing more than 50% of the aggregate voting Equity Interests of such holding company immediately following that transaction are the same as the holders representing more than 50% of the Company’s aggregate voting Equity Interests immediately prior to that transaction and each holder holds the same percentage of voting Equity Interests of such holding company as such holder held of the Company’s, as applicable, voting Equity Interests immediately prior to that transaction or (ii) the Company’s voting Equity Interests outstanding immediately prior to such transaction are converted into or exchanged for, a majority of the voting Equity Interests of such holding company immediately after giving effect to such transaction; (b) the Parent shall fail to beneficially own, directly or indirectly, 100% of the Equity Interests in the Company; or (c) the sale, transfer, assignment or other disposition of all or substantially all of the assets related to the Products; provided, that, for the avoidance of doubt, from and after the Closing, each reference to the “Company” in clause (a) of the foregoing definition shall be automatically without any further action by any Party be deemed to be modified to replace each such reference with the “Parent”. Notwithstanding anything to the contrary herein, the De-SPAC Transaction shall not be a Change of Control.

 

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Change of Control Payment” has the meaning set forth in ‎Section 3.1(c).

 

Closing” has the meaning set forth in ‎Section 8.1.

 

Closing Date” has the meaning set forth in ‎Section 8.1.

 

Collateral” has the meaning ascribed thereto in the Security Agreement.

 

Collateral Documents” has the meaning ascribed thereto in the Security Agreement.

 

Commercialization” means, on a country-by-country basis, any and all activities with respect to the manufacture, distribution, marketing, detailing, promotion, selling and securing of reimbursement of Products in a country after Marketing Authorization for a Product in that country has been obtained, which shall include, as applicable, post-marketing approval studies, post-launch marketing, promoting, detailing, marketing research, distributing, customer service, selling the Products, importing, exporting or transporting the Products for sale, and regulatory compliance with respect to the foregoing. When used as a verb, “Commercialize” means to engage in Commercialization.

 

Commercially Reasonable and Diligent Efforts” means, with respect to the efforts to be expended with respect to the Products, such efforts and resources normally used by a reasonably prudent company in the medical device industry of a size and product portfolio comparable, and with similar resources available, to the Company and its Subsidiaries (provided that the number of full time sales representatives (including direct sales representatives and tele-sales representatives) of the Company with respect to the Product shall not fall below sixty (60) at any time after December 31, 2023 and shall not fall below seventy (70) at any time after December 31, 2024), with the marketing, sale and product development and research plans similar to similarly situated companies in the medical device industry, taken as a whole, in which medical device product is owned or licensed in the same manner as the Products, which medical device product is at a similar stage in its product life and of similar market and profit potential as the Products, taking into account efficacy, safety, approved labeling, the competitiveness of alternative products, pricing/reimbursement for the medical device product, the intellectual property and regulatory protection of the medical device product, the regulatory structure and the profitability of the medical device product, all as measured by the facts and circumstances in existence at the time such efforts are due.

 

Company” has the meaning set forth in the preamble.

 

Company Indemnification Obligations” has the meaning set forth in ‎Section 10.1.

 

Company Indemnified Party” has the meaning set forth in Section ‎10.2.

 

Company Party” means any of the Company and the Guarantors.

 

Comparable Yield” has the meaning set forth in ‎Section 6.21(a).

 

Compliance Certificate” means a certificate substantially in the form of Exhibit B.

 

Confidential Information” means any and all technical and non-technical non-public information provided by either Party to the other (including, without limitation, the reports provided pursuant to ‎Section 3.2 and any notices or other information provided pursuant to Section 6.3), either directly or indirectly, and including any materials prepared on the basis of such information, whether in graphic, written, electronic or oral form, and marked or identified at the time of disclosure as confidential, or which by its context would reasonably be deemed to be confidential, including without limitation information relating to a Party’s technology, products and services, and any business, financial or customer information relating to a Party. The existence and terms of this Agreement shall be deemed the Confidential Information of both Parties. For clarity, this Agreement shall supersede the CDA and the CDA shall cease to be of any force and effect following the execution of this Agreement; provided, however, that all information falling within the definition of “Confidential Information” set forth in the CDA shall also be deemed Confidential Information disclosed pursuant to this Agreement, and the use and disclosure of such Confidential Information following the date of this Agreement shall be subject to the provisions of ‎ARTICLE IX.

 

Contract” means any contract, agreement, commitment, instrument, license, sublicense, subcontract, real or personal property lease or sublease, note, indenture, mortgage, bond, letter of credit, guarantee, purchase order, or other legally binding business arrangement, whether written or oral, together with any amendments, restatements, supplements or other modifications thereto.

 

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Contractual Obligation” means, as to any Person, any obligation arising under any Contract.

 

Convertible Notes” means the Convertible Unsecured Promissory Notes issued by the Company from time to time pursuant to that certain Convertible Note Purchase Agreement, dated as of December 22, 2021, among the Company and the Investors party thereto, as amended, restated, supplemented or otherwise modified from time to time.

 

Copyright License” means any agreement, whether written or oral, providing for the grant of any right to use any Work under any Copyright.

 

Copyrights” means (a) all proprietary rights afforded Works pursuant to Title 17 of the United States Code, including, without limitation, all rights in mask works, copyrights and original designs, and all proprietary rights afforded such Works by other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international treaties and conventions thereto), whether registered or unregistered, including, but not limited to, all applications for registration, renewals, extensions, reversions or restorations thereof now or hereafter provided for by Law and all rights to make applications for registrations and recordations, regardless of the medium of fixation or means of expression, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to; and (b) all copyright rights under the copyright Laws of the United States and all other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international copyright treaties and conventions), whether registered or unregistered, including, but not limited to, all applications for registration, renewals, extensions, reversions or restorations of copyrights now or hereafter provided for by Law and all rights to make applications for copyright registrations and recordations, regardless of the medium of fixation or means of expression, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Cover” or “Covering” means, with reference to a Patent and a product, composition, article of manufacture, or method, that the manufacture, practice, use, offer for sale, sale or importation of the product, composition, article of manufacture, or method, would infringe a Valid Claim of such Patent, or with respect to a Valid Claim of a pending application for Patent, would infringe such Valid Claim if it were issued in the form pending, in each case in the country in which such activity occurs without a license thereto (or ownership thereof).

 

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

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Deposit Account” means a “deposit account” (as defined in Article 9 of the Uniform Commercial Code), investment account or other account in which funds are held or invested to or for the credit or account of the Company.

 

Designated Jurisdiction” means any country, territory or region to the extent that such country, territory or region is the subject of any Sanction.

 

De-SPAC Transaction” means the Mergers (as defined in the Business Combination Agreement) and each other transaction contemplated by the Business Combination Agreement.

 

Disposition” or “Dispose” means the sale, transfer, out-license, lease or other disposition (including any Sale and Leaseback Transaction or any issuance by any Subsidiary of its Equity Interests other than to a Company Party) of any property included in the Collateral (or that would be Collateral if it were property of an Obligor) by any Company Party or any Subsidiary of the Company, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding the following (collectively, the “Permitted Transfers”): (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business, (b) the sale, lease, license, transfer or other disposition in the ordinary course of business of surplus, obsolete or worn out property no longer used or useful in the conduct of the Business of the Company and its Subsidiaries, (c) the abandonment or other disposition of IP Rights that are not material or are no longer used or useful in any material respect in the Business of the Company and its Subsidiaries, (d) licenses, sublicenses, leases or subleases (other than relating to IP Rights, in each case) granted to third parties in the ordinary course of business and not interfering with the Business of the Company and its Subsidiaries, (e) any Involuntary Disposition or any sale, lease, license or other disposition of property (other than, for the avoidance of doubt, IP Rights) in settlement of, or to make payment in satisfaction of, any property or casualty insurance, (f) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof in the ordinary course of business and not as part of a financing transaction, (g) Permitted Licenses, (h) to the extent constituting Permitted Liens, (i) sales, leases, licenses, transfers or other dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale, lease, license, transfer or other disposition are promptly applied to the purchase price of similar replacement property, (j) to the extent constituting a Disposition, customary transfer pricing and cost-sharing arrangements (i.e., “cost-plus” arrangements) among the Company and its Subsidiaries that are in the ordinary course of business; and (k) the sale, transfer, issuance or other disposition of a de minimis number of shares of the Equity Interests of a Foreign Subsidiary of a Company Party in order to qualify members of the governing body of such Subsidiary if required by Applicable Law. It is understood and agreed that, notwithstanding anything to the contrary set forth in this definition, in no event shall a “Permitted Transfer” include any license of any Product (or any IP Rights associated therewith) other than Permitted Licenses.

 

Disputes” has the meaning set forth in ‎Section 4.10(i).

 

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Disqualified Capital Stock” means any Equity Interests that (i) by its terms, (ii) by the terms of any security into which it is convertible or for which it is exchangeable, or (iii) by contract or otherwise, is, or upon the happening of any event or passage of time would be, required to be redeemed, or is redeemable at the option of the holder thereof, in any such case on or prior to the date that is ninety-one (91) days after the Legal Maturity Date; provided that only the portion of Equity Interests (or portion of security into which it is convertible or for which it is exchangeable) which is, or upon the happening of any event or passage of time would be, required to be redeemed, or is redeemable at the option of the holder thereof, on or prior to such date will be deemed to be Disqualified Capital Stock; and provided further that if such Equity Interests are issued to any plan for the benefit of directors, managers, employees, officers or consultants of the Company or its Subsidiaries or by any such plan to such directors, managers, employees, officers or consultants, such Equity Interests shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations. Notwithstanding the preceding sentence, any Equity Interests that would constitute Disqualified Capital Stock solely because the holders thereof have the right to require the redemption or repurchase of such Equity Interests upon the occurrence of a Change of Control, fundamental change, delisting or an asset sale will not constitute Disqualified Capital Stock if the “asset sale,” “fundamental change”, “delisting” or “Change of Control” provisions applicable to such Equity Interests provide that the issuer thereof will not redeem or repurchase any such Equity Interests pursuant to such provisions prior to all other Obligations (other than contingent indemnification obligations for which no claim has been asserted) having been irrevocably paid in full in cash.

 

Dollar” or the sign “$” means United States dollars.

 

Domain Names” means all domain names and URLs that are registered and/or owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state of the United States or the District of Columbia.

 

Effective Date” has the meaning set forth in the preamble hereto.

 

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member, membership or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

ERISA” means the Employee Retirement Income Security Act of 1974 as amended.

 

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ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) by the Company or any ERISA Affiliate from a Multiemployer Plan, (d) the filing by the plan administrator of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination under Sections 4041 of ERISA, (e) the institution by the PBGC of proceedings under Section 4042 of ERISA to terminate a Pension Plan, (f) the determination that any Multiemployer Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA or is insolvent, within the meaning of Section 4245 of ERISA, or has been terminated, within the meaning of Section 4041A of ERISA, (g) the determination that any Pension Plan is in at-risk status within the meaning of Section 303 of ERISA, or (h) the imposition of any liability pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA upon the Company or any ERISA Affiliate.

 

Event of Default” means any of the events set forth below:

 

(a) Non-Payment. The Company or any Guarantor (if any) fails to pay any amounts to the Investor hereunder when and as the same shall become due and payable; provided that the Company or such Guarantor shall have the right to cure such failure within five (5) Business Days if the Company and the Guarantors have not failed to make any payment hereunder on the due date therefor more than three times;

 

(b) Covenants. If (i) any Company Party fails to perform or observe any covenant or agreement (not specified in subsection (a) above) contained in any Transaction Document on its part to be performed or observed, and, in the case of any failure that is capable of cure, such failure continues unremedied for a period of thirty (30) or more days; and (ii) such failure (without giving effect to any qualifications as to “materiality” “Material Adverse Effect” or any words of similar meaning) could reasonably be expected to have a Material Adverse Effect;

 

(c) Representations and Warranties. If (i) any representation or warranty made or deemed made by or on behalf of the Company or any other Company Party in or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Transaction Document or any amendment or modification hereof or thereof, shall: (A) prove to have been incorrect when made or deemed made to the extent that such representation or warranty contains any materiality or Material Adverse Effect qualifier; or (B) prove to have been incorrect in any material respect when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality or Material Adverse Effect qualifier; and (ii) such inaccuracy (without giving effect to any qualifications as to “materiality” “Material Adverse Effect” or any words of similar meaning) could reasonably be expected to have a Material Adverse Effect;

 

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(d) Bankruptcy Event. (i) The Company or any Company Party (A) institutes or consents to the institution of any proceeding under any Debtor Relief Law or makes an assignment for the benefit of creditors, (B) applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property, or (C) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; (ii) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; (iii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within sixty (60) calendar days after its issue or levy; or (iv) any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or

 

(e) Indebtedness. Any Company Party (i) fails to pay when due beyond any grace period provided with respect thereto (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) any Indebtedness (other than the Obligations hereunder) in excess of $15,000,000 (or its foreign currency equivalent) or (ii) fails to perform or observe any covenant or agreement to be performed or observed by it contained in any agreement or in any instrument evidencing any of its Indebtedness (other than the Obligations hereunder) of $15,000,000 or more and, as a result of such failure, any other party to that agreement or instrument is entitled to exercise the right to accelerate the maturity of any Indebtedness thereunder.

 

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

 

Excluded Liabilities and Obligations” has the meaning set forth in Section ‎2.2.

 

Excluded Subsidiary” means, collectively, (i) Immaterial Subsidiaries and (ii) any Subsidiary that the cost or burden of providing a guaranty or to create or perfect Liens over the assets of which would outweigh the benefit afforded to the Investor thereby, as determined in the Investor’s sole but commercially reasonable discretion (it being understood and agreed that so long as any Subsidiary constitutes an “Excluded Subsidiary” under and as referred to in the Term Loan Documents, such Subsidiary shall constitute an Excluded Subsidiary hereunder).

 

FDA” means the U.S. Food and Drug Administration or any successor agency or authority thereto.

 

Final Comparable Yield” has the meaning set forth in ‎Section 6.21(b).

 

Final Payment Amount” means as of any date of determination, the amount equal to the sum of (i) the applicable amount payable under ‎Section 3.1(f), less the aggregate of all of the payments of the Company in respect of the Revenue Interests (including any Under Performance Payment) made to the Investor prior to such date, plus (ii) any other Obligations payable by the Company Parties under this Agreement and the other Transaction Documents (if any).

 

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Final Schedule 6.21(e)” has the meaning set forth in ‎Section 6.21(b).

 

Financial Statements” means the Audited Financial Statements and the Interim Financial Statements.

 

Force Majeure Event” means military action or war (whether or not declared), terrorism, riot, fire, explosion, accident, flood, sabotage, changes in Applicable Laws, actions of Governmental Authorities, pandemics (other than the current COVID-19 pandemic or any government response thereto), earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires, or other natural disasters or weather conditions.

 

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

Fundamental Representations” means those representations and warranties of the Company set forth in ‎Section 4.1 (Organization), ‎Section 4.2 (No Conflicts), ‎Section 4.3 (Authorization), ‎Section 4.4 (Ownership), ‎Section 4.8 (No Broker’s Fees), Section 4.10 (Intellectual Property Matters), ‎Section 4.13 (Bankruptcy), Section 4.20 (Perfection of Security Interests) and ‎Section 4.23 (Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act).

 

GAAP” means generally accepted accounting principles in effect as the standard financial accounting guidelines in the United States from time to time (consistently applied and on a basis consistent with the accounting policies, practices, procedures, valuation methods and principles used in preparing the Company’s financial statements), and any successor thereto; provided that if a transition in such generally accepted accounting principles would substantively change the recognition of revenue with respect to Net Sales (as currently defined) and its calculation as set forth this Agreement, then the Parties shall mutually agree to amendments to this Agreement in order to cause the amount of Revenue Interests as determined after giving effect to such transition in generally accepted accounting principles to be substantially the same as the amount of Revenue Interests as determined under generally accepted accounting principles in effect as the standard financial accounting guidelines in the United States as of the Effective Date.

 

Gastric Balloon” means a gastric balloon for weight loss owned or controlled by the Company, the Parent, or any of their respective Subsidiaries as of the Effective Date or during the Payment Term, and any derivatives, modifications and improvements thereto.

 

Governmental Authority” means the government of the United States, any other nation or any political subdivision thereof, whether state, local or otherwise, and any agency, authority (including supranational authority), commission, instrumentality, regulatory body, court, central bank or other Person exercising executive, legislative, judicial, Taxing, regulatory or administrative powers or functions of or pertaining to government, including each Patent Office, the FDA and any other government authority in any jurisdiction.

 

Governmental Licenses” means all authorizations issuing from a Governmental Authority, including the FDA, based upon or as a result of applications to and requests for approval from a Governmental Authority for the right to manufacture, import, store, market, promote, advertise, offer for sale, sell, use and/or otherwise distribute a Product, which are owned by or licensed to the Company or any Subsidiary, acquired by the Company or any Subsidiary via assignment, purchase or otherwise or that the Company or any Subsidiary is authorized or granted rights under or to.

 

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Grantors” means the Company and the Guarantors.

 

Guarantors” means (i) from and after the Closing, the Parent, (ii) each Subsidiary (other than an Excluded Subsidiary) that owns any material portion of the Collateral as of the Closing Date, including any Subsidiary that holds or maintains any Regulatory Approval necessary or required for any Product commercialization and development activities, owns or operates any manufacturing or similar facility involved in Product commercialization and development activities, owns or licenses any material Intellectual Property, holds inventory or receivables, books revenue, or has more than ten (10) employees, and (iii) any other Subsidiary of the Company that executes and delivers a Joinder Agreement pursuant to ‎Section 6.1.

 

Guaranty” means that certain Guaranty, dated as of the Closing Date, executed in favor of the Investor by Merger Sub 2, the Parent, and each of the other Guarantors, substantially in the form attached as Exhibit H hereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Hard Cap” means two hundred sixty percent (260%) of the Investment Amount.

 

Hedging Agreements” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

Immaterial Subsidiary” means, as of any date of determination, any Foreign Subsidiary of a Company Party (i) the unconsolidated assets of which does not exceed two and a half percent (2.5%) of the consolidated assets of Parent and its consolidated Subsidiaries as set forth in the financial statements most recently delivered pursuant to Sections 6.9(a) or (b), as applicable, and (ii) the unconsolidated revenues of which does not exceed two and a half percent (2.5%) of the consolidated revenues of Parent and its consolidated Subsidiaries as set forth in the financial statements most recently delivered pursuant to Sections 6.9(a) or (b), as applicable; provided that no Subsidiary of the Company Parties shall qualify as an Immaterial Subsidiary if (x) the assets or revenue of such Subsidiary taken together with the assets or revenue of all then existing Immaterial Subsidiaries exceeds seven and a half percent (7.5%) of the consolidated assets or revenue, as applicable, of Parent and its consolidated Subsidiaries or (y) such Subsidiary holds or maintains any Regulatory Approval necessary or required for any Product commercialization and development activities, owns or operates any manufacturing or similar facility involved in Product commercialization and development activities, owns or licenses any material Intellectual Property, holds inventory or receivables, books revenue, or has more than ten (10) employees.

 

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Indebtedness” of any Person means (a) any obligation of such Person for borrowed money, (b) any obligation of such Person evidenced by a bond, debenture, note or other similar instrument, (c) any obligation of such Person to pay the deferred purchase price of property or services (except (i) trade accounts payable that arise in the ordinary course of business, (ii) payroll liabilities and deferred compensation, and (iii) any purchase price adjustment, royalty, earnout, milestone payments, contingent payment or deferred payment of a similar nature incurred in connection with any license, lease, contract research and clinic trial arrangements or acquisition), (d) any obligation of such Person as lessee under a capital lease (under GAAP as in effect on the date hereof), (e) any obligation of such Person to purchase securities or other property that arises out of or in connection with the sale of the same or substantially similar securities or property, (f) any non-contingent obligation of such Person to reimburse any other Person in respect of amounts paid under a letter of credit or other guaranty issued by such other Person, (g) any Indebtedness of others secured by a Lien on any asset of such Person, and (h) any Indebtedness of others guaranteed by such Person; provided that intercompany loans among the Company, Parent, or any of their respective Subsidiaries shall not constitute Indebtedness.

 

Indemnified Taxes” means all Taxes imposed on or with respect to any payment made by or on account of any obligation of the Company under a Transaction Document.

 

Initial Draft Comparable Yield” has the meaning set forth in ‎Section 6.21(b).

 

Initial Draft Schedule 6.21(e)” has the meaning set forth in ‎Section 6.21(b).

 

Intellectual Property” means all intellectual property, including but not limited to all proprietary information, trade secrets, Know-How, utility models; confidential information; inventions (whether patentable or unpatentable and whether or not reduced to practice or claimed in a pending patent application) and improvements thereto, Patents, registered or unregistered Trademarks, trade names and service marks (including all goodwill associated therewith), registered and unregistered Copyrights and all applications thereof.

 

Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Closing Date, by and between the Term Loan Agent and RTW Investments, LP, as agent for the Investor, and acknowledged and agreed to by Merger Sub 2, each Guarantor, and any future Guarantor, in substantially the form attached hereto as Exhibit E, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Interim Financial Statements” means the unaudited consolidated balance sheet of the Company and its Subsidiaries for the nine month period year ended September 30, 2022, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such period of the Company and its Subsidiaries, including the notes thereto (if any).

 

-13-

 

 

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

 

Internal Revenue Service” means the United States Internal Revenue Service.

 

Investment Amount” has the meaning set forth in ‎Section 2.1.

 

Investor” has the meaning set forth in the preamble.

 

Investor Indemnification Obligations” has the meaning set forth in ‎Section 10.2.

 

Investor Indemnified Party” has the meaning set forth in Section ‎10.1.

 

Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Party or any of its Subsidiaries.

 

IP Rights” means, collectively, all Confidential Information, all Copyrights, all Copyright Licenses, all Domain Names, all Governmental Licenses, all applications and requests for Governmental Licenses, all Other Intellectual Property, all Other IP Agreements, all Patents, all Patent Licenses, all Patent Rights (including, for the avoidance of doubt, the Product Patent Rights), all Proprietary Databases, all Proprietary Software, all Trademarks, all Trademark Licenses, all Trade Secrets, all Websites, all Website Agreements and all Regulatory Approvals, in each case, which are owned or controlled by, issued or licensed to, licensed by, or hereafter acquired or licensed by, the Company, including (but not limited to) the items listed on Schedule 4.10(a).

 

Joinder Agreement” means, collectively or individually, as the context requires, (i) a joinder agreement substantially in the form of Exhibit D and (ii) an accession agreement substantially in the form of Exhibit A to the Security Agreement, in each case, executed and delivered by each Subsidiary in accordance with the provisions of ‎Section 6.1.

 

Judgment” means any judgment, order, consent order, writ, injunction, citation, attachment, stipulation, award or decree of any nature.

 

Key Countries” means Australia, Brazil, Canada, Chile, France, India, Italy, the People’s Republic of China, Saudi Arabia, Spain, United Arab Emirates, the United Kingdom, and the United States.

 

Know-How” means all non-public information, results and data of any type whatsoever, in any tangible or intangible form (and whether or not patentable), including databases, practices, methods, techniques, specifications, formulations, formulae, knowledge, skill, experience, data and results (including pharmacological, medicinal chemistry, biological, chemical, biochemical, toxicological and clinical study data and results), analytical and quality control data, stability data, studies and procedures, and manufacturing process and development information, results and data.

 

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Knowledge” means, with respect to the Company, (a) for purposes of Article ‎IV, the knowledge, after due inquiry, as of the date of this Agreement, of any of the officers of the Company identified on Schedule 1.1, and (b) for all other purposes of this Agreement, the knowledge, after due inquiry, as of a specified time, of any of the officers of the Company identified on Schedule 1.1 or any successor to any such officer holding the same or substantially similar officer position at such time.

 

Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case, having the force of law.

 

Legal Maturity Date” means December 31, 2030.

 

Letter Agreement” means that certain letter agreement by and among Compute Health Acquisition Corp., a Delaware corporation, Merger Sub 2, the Company, the Parent, and the Investor, dated as of the date hereof.

 

License Agreement” means (i) each agreement identified on Schedule 6.8 as of the Effective Date and (ii) any New License Agreements, which may be added to Schedule 6.8. “Licensed Product Patent Rights” means all Product Patent Rights licensed or sublicensed to the Company or any of its Subsidiaries.

 

Licensee” means, with respect to any Products, a Third Party to whom the Company, the Parent, or any of their respective Subsidiaries has granted a license or sublicense (or any Third Party to whom such Third Party has granted a license or sublicense) to develop, have developed, make, have made, seek Regulatory Approvals for, distribute, use, have used, import, sell, offer to sell, have sold or otherwise Commercialize such Products under the applicable License Agreement.

 

Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or otherwise), charge against or interest in property or other priority or preferential arrangement of any kind or nature whatsoever, in each case to secure payment of a debt or performance of an obligation, including any conditional sale or any sale with recourse.

 

Loss” means any loss, assessment, award, cause of action, claim, charge, Tax, cost, expense (including reasonable expenses of investigation and reasonable attorneys’ fees), fine, judgment, liability, obligation or penalty; provided, however that Loss shall not include any lost profits or revenue or consequential, punitive, special or incidental damages except (a) the amount of any Revenue Interests that are not received by the Investor due to failure by any Third Party to make payment thereof (other than resulting from any matter described in ‎Section 10.1(a), (b), (c) or (d)) and (b) any lost profits or revenue or consequential, punitive, special or incidental damages awarded against or payable by Investor to a Third Party in connection with a claim or action for which the Company is required to indemnify Investor pursuant to Section ‎10.1.

 

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Marketing Authorization” means, with respect to a Product, the Regulatory Approval required by Applicable Law to commercially distribute such Product in a country or region, including, to the extent required by Applicable Law for the commercial distribution of such Product, all pricing approvals and government reimbursement approvals.

 

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, liabilities or financial condition of the Company and its Subsidiaries taken as a whole, (b) a material impairment of the rights and/or remedies of the Investor under any Transaction Document to which it is a party or a material impairment in the perfection or priority of the Investor’s security interests in the Collateral, (c) an impairment of the ability of the Company Parties (taken as a whole) to perform their respective obligations under the Transaction Documents that could reasonably be expected to have a material adverse effect on the business, assets, properties, liabilities or financial condition of the Company and its Subsidiaries taken as a whole, or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Company Party of any Transaction Document to which it is a party; provided, that none of the following would constitute a Material Adverse Effect, except to the extent such changes have had a disproportionate effect on the Company or the Business relative to other participants in the medical device industry: (i) changes in laws or regulations or in the interpretations or methods of enforcement thereof; (ii) general economic changes in the medical device industry; or (iii) any Force Majeure Event.

 

Material Contract Counterparty” means a counterparty to any Material Contract.

 

Material Contracts” means (a) each Contract creating or evidencing any Material Indebtedness, (b) the Term Loan Documents, (c) any Contract providing for the inbound or outbound license of material Intellectual Property, and (d) any other Contract to which Parent or any of its Subsidiaries is a party or a beneficiary from time to time, or to which any assets or properties of Parent or any of its Subsidiaries are bound (i) the absence or termination of which would reasonably be expected to have a Material Adverse Effect or (ii) without duplication during any period of twelve (12) consecutive months is reasonably expected to, directly or indirectly, (x) result in payments or receipts (including royalty, licensing or similar payments) made to Parent or any of its Subsidiaries in an aggregate amount in excess of $3,000,000, or (y) require payments or expenditures (including royalty, licensing or similar payments) to be made by Parent or any of its Subsidiaries in an aggregate amount in excess of $3,000,000, in each case, as amended, supplemented or otherwise modified from time to time.

 

Material Indebtedness” means (i) Indebtedness pursuant to the Term Loan Documents and (ii) any other Indebtedness of the Company, the Parent or any of their respective Subsidiaries, the outstanding principal amount of which, individually or in the aggregate, exceeds $1,000,000 (or the equivalent amount in other currencies).

 

Maturity Payment” has the meaning set forth in ‎Section 3.1(d).

 

Merger Sub 2” means Compute Health LLC, a Delaware limited liability company, as successor in interest to the Company following consummation of the transactions in connection with the De-SPAC Transaction, whereby, at the Closing, the Company shall merge with and into Merger Sub 2, with Merger Sub 2 as the surviving entity in such merger.

 

-16-

 

 

Methodology” has the meaning set forth in ‎Section 6.21(c).

 

Minimum Return Date” means the date on which the Investor have received aggregate payments on account of the Revenue Interests equal to 100% of the Investment Amount.

 

Multiemployer Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

Net Sales” means, with respect to each Product, for any period of determination and without duplication, the sum of: (a) “net revenue” with respect to the sale by the Company, the Parent, or any of their respective Subsidiaries, and any of their respective Licensees (each, a “Selling Party”) of such Product, as reported in such Selling Party’s (or its successor’s) periodic reports filed with the SEC (or its foreign equivalent) on Form 10-Q and Form 10-K (as applicable, or its foreign equivalent); and (b) for any sales of such Product by a Selling Party that are not reported in such Selling Party’s (or its successor’s) periodic reports filed with the SEC (or its foreign equivalent) on Form 10-Q and Form 10-K (as applicable, or its foreign equivalent) under the preceding clause (a) as “net revenue”, then “net sales” of each such Product shall be calculated in such case as the difference between (notwithstanding anything to the contrary and for the avoidance of doubt, no “net sales” calculated in the preceding clause (a) shall be included in the “net sales” calculation pursuant to clause (b)): (i) the gross amount billed, invoiced or otherwise recognized as revenue in accordance with GAAP with respect to sales or other dispositions to a Third Party of such Product by the Selling Parties, minus (ii) the following deductions:

 

(a) rebates, credits or allowances actually granted for damaged or defective products, returns or rejections of such Product or recalls, or for retroactive price reductions and billing errors;

 

(b) normal and customary trade, cash, quantity and other customary discounts, allowances and credits (including chargebacks) given to Third Parties in the ordinary course;

 

(c) sales Taxes, duties, VAT Taxes and other Taxes to the extent imposed upon and paid with respect to the sales price (and excluding in each case Taxes based on income or franchise Taxes of any kind);

 

(d) freight, duty, postage, shipping and transportation or shipping insurance expense and other transportation charges directly related to the distribution of such Product;

 

(e) non-affiliated brokers or agent commissions, distribution services agreement fees and other similar amounts allowed or paid to Third Party distributors, including specialty distributors of such Product;

 

(f) rebates made with respect to sales paid for by any Governmental Authority (including, without limitation, Medicaid and Medicare), their agencies and purchasers and reimbursers, managed health care organizations, or to trade customers;

 

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(g) the portion of administrative fees paid during the relevant time period to group purchasing organizations relating to such Product;

 

(h) any invoiced amounts that are not collected by a Selling Party, including bad debts; and

 

(i) any customary or similar payments related to the foregoing (a) – (h) that apply to the sale or disposition of medical device products.

 

For clarity, Net Sales will not include any sales to an Affiliate (unless such Affiliate is the final end-user of such Product), but will include subsequent sales or dispositions of Products to a Third Party. In the case of any sale or other disposal for value, such as barter or counter-trade, of such Product, or part thereof, other than in an arm’s length transaction exclusively for cash, Net Sales shall be calculated as above on the value of the non-cash consideration received or the fair market price (if higher) of such Product in the country of sale or disposal, as determined in accordance with GAAP.

 

New License Agreement” means any partnership agreement, license agreement or similar agreement entered into by the Company, the Parent, or any of their respective Subsidiaries, pursuant to which the Company, the Parent, or any of their respective Subsidiaries has granted a license or sublicense to any Third Party to develop, have developed, make, have made, seek Regulatory Approvals for, distribute, use, have used, import, sell, offer to sell, have sold or otherwise Commercialize any Product.

 

Objection Notice” has the meaning set forth in ‎Section 6.21(b).

 

Obligations” means all liabilities, obligations, covenants and duties of any the Company Parties arising under this Agreement or any other Transaction Document with respect to the payment of the Revenue Interests (including any Under Performance Payment) up to the Hard Cap, and the obligations of the Company to pay any interest accrued on any unpaid Revenue Interests or the Final Payment Amount and reimburse or indemnify the Investor for any Losses incurred by the Investor in connection with the enforcement of its rights under this Agreement.

 

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

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Other Intellectual Property” means all worldwide intellectual property rights, industrial property rights, proprietary rights and common-law rights, whether registered or unregistered, which are not otherwise included in Confidential Information, Copyrights, Copyright Licenses, Domain Names, Governmental Licenses, Other IP Agreements, Patents, Patent Licenses, Trademarks, Trademark Licenses, Proprietary Databases, Proprietary Software, Websites, Website Agreements and Trade Secrets, including, without limitation, all rights to and under all new and useful algorithms, concepts, data (including all clinical data relating to a Product), databases, designs, discoveries, inventions, know-how, methods, processes, protocols, chemistries, compositions, formulas, show-how, software (other than commercially available, off-the-shelf software that is not assignable in connection with a Change of Control), specifications for the Products, techniques, technology, trade dress and all improvements thereof and thereto, in each of the foregoing cases, which is owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Other IP Agreements” means any agreement, whether written or oral, providing for the grant of any right under any Confidential Information, Governmental License, application or request for a Governmental License, Proprietary Database, Proprietary Software, Trade Secret and/or any other IP Right, to the extent that the grant of any such right is not otherwise the subject of a Copyright License, Trademark License, Patent License or Website Agreement.

 

Owned Product Patent Rights” means Product Patent Rights which are owned by the Company or its Subsidiaries.

 

Parent” means Allurion Technologies Holdings, Inc., a Delaware corporation.

 

Party” or “Parties” has the meaning set forth in the preamble.

 

Patent License” means any agreement, whether written or oral, providing for the grant of any right under any Patent.

 

Patent Office” means the applicable patent office, including the United States Patent and Trademark Office and any comparable foreign patent office, for any Patents.

 

Patent Rights” means, collectively, with respect to a Person, all Patents issued or assigned to, and all Patent applications and registrations made by, such Person (whether established or registered or recorded in the United States or any other country or any political subdivision thereof), together with any and all (a) rights and privileges arising under applicable Law with respect to such Person’s use of any Patents, (b) inventions and improvements described and claimed therein, (c) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, (d) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (e) rights corresponding thereto throughout the world and (f) rights to sue for past, present or future infringements thereof, in each such case, related to the Products and which are owned or controlled by, issued or licensed to, licensed by, or hereafter acquired or licensed by, the Company or any Subsidiary, including without limitation those Patent Rights identified in Schedule 4.10(a).

 

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Patents” means all letters patent and patent applications, industrial designs and design patent rights protected, created or arising under the Laws of the United States or in any other jurisdiction or under any international convention (and all letters patent that issue therefrom or from an application claiming priority therefrom) and all patent term extensions, supplementary protection certificates, reissues, reexaminations, extensions, substitutes, renewals, divisions and continuations (including continuations-in-part and continuing prosecution applications) thereof, and including provisional applications and statutory invention registrations, for the full term thereof, together with the right to claim the priority thereto and the right to sue for past infringement of any of the foregoing.

 

Payment Term” means the time period commencing on the Closing Date and expiring on the earlier of (a) the date upon which the Investor has received in full cash payments in respect of the Revenue Interests totaling the Final Payment Amount, (b) the date upon which the Investor has received the payment amounts required by and set forth in Section 3.1(f)(i), (ii) or (iii), or (c) the Legal Maturity Date; provided that the Payment Term shall be deemed to extend until any Obligations that arise prior to the end of the Payment Term are fully paid.

 

Pension Plan” means any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is maintained or is contributed to by the Company and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412 of the Internal Revenue Code.

 

Permits” means licenses, Governmental Licenses, certificates, accreditations, Regulatory Approvals, other authorizations, registrations, permits, consents, clearances and approvals required in connection with the conduct of the Company’s or any Subsidiary’s Business or to comply with any Applicable Laws, and those issued by state governments for the conduct of the Company’s or any Subsidiary’s Business.

 

Permitted Debt” means any of the following Indebtedness of the Company and its Subsidiaries (which, for purposes of determining whether such Indebtedness exceeds any maximum amount provided in the applicable clause below, shall be calculated on a consolidated basis with respect to the Company and its Subsidiaries):

 

(a) Indebtedness under the Term Loan Documents in an aggregate principal amount not to exceed the amount permitted under the Intercreditor Agreement and as amended or refinanced in accordance with the Intercreditor Agreement;

 

(b) Indebtedness under the Transaction Documents;

 

(c) Indebtedness incurred by the Company or its Subsidiaries consisting of (i) the financing of the payment of insurance premiums and (ii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice;

 

(d) Indebtedness owed to (including obligations in respect of letters of credit for the benefit of) any Person providing worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or any Subsidiary incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or indemnification obligations to such Person;

 

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(e) Indebtedness in respect of performance, indemnity, bid, stay, customs, appeal, replevin and surety bonds, performance and completion guarantees and other similar bonds or guarantees, trade contracts, government contracts and leases, in each case incurred in the ordinary course of business not to exceed $500,000 in the aggregate at any time outstanding, but excluding guaranties with respect to any obligations for borrowed money;

 

(f) Indebtedness arising from (A) the honoring by a bank or other financial institution of a check, draft, or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that such Indebtedness is extinguished within five (5) Business Days of notification to the Company of its incurrence and (B) Treasury Management Arrangements;

 

(g) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations incurred in the ordinary course of business; provided, that, the aggregate outstanding amount of such letters of credit issued thereunder shall not exceed $500,000 at any time outstanding;

 

(h) Indebtedness in respect of Hedging Agreements in an aggregate notional amount for all such Hedging Agreements not to exceed $1,500,000 at any time outstanding; provided, that, such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view”;

 

(i) to the extent constituting Indebtedness, customary transfer pricing and cost-sharing arrangements (i.e., “cost-plus” arrangements) among the Company and its Subsidiaries that are in the ordinary course of business;

 

(j) Acquired Debt, provided that the aggregate outstanding amount of all of the Acquired Debt shall not exceed $2,500,000 at any one time outstanding;

 

(k) Indebtedness consisting of capitalized lease obligations and purchase money Indebtedness, in each case incurred to finance the acquisition, repair, improvement or construction of fixed or capital assets of such Person, provided that the principal amount of such Indebtedness does not exceed the lower of the cost or fair market value of the property so acquired or built or of such repairs or improvements financed with such Indebtedness (each measured at the time of such acquisition, repair, improvement or construction is made); provided, that, (A) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $3,000,000 at any one time outstanding, (B) such Indebtedness when incurred shall not exceed the purchase price of (or the repair, improvement or constructions costs for) the asset(s) financed, and (C) no such Indebtedness shall be refinanced, renewed or extended for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing, renewal or extension;

 

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(l) Guarantees of the Company and its Subsidiaries in respect of Indebtedness and other obligations of the Company and any Subsidiary otherwise permitted hereunder; provided that any subrogation claims of any such guarantying Company Party shall be subordinated to the Obligations on terms satisfactory to the Investor acting reasonably (it being understood and agreed that so long as such Indebtedness is subordinated to the Obligations in a manner at least as favorable to the Investor as the subordination provisions required by the Term Loan Documents, such subordination provisions shall be acceptable to the Investor);

 

(m) credit card Indebtedness in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;

 

(n) to the extent constituting Indebtedness, customary transfer pricing and cost-sharing arrangements (i.e., “cost-plus” arrangements) among the Company and its Subsidiaries that are in the ordinary course of business;

 

(o) other unsecured Indebtedness not otherwise permitted under clauses (a) through (n) in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;

 

(p) Indebtedness of a Company Party owing to another Company Party; provided that, in each case, such Indebtedness shall be subordinated to the Obligations on terms satisfactory to the Investor acting reasonably (it being understood and agreed that so long as such Indebtedness is subordinated to the Obligations in a manner at least as favorable to the Investor as the subordination provisions required by the Term Loan Documents, such subordination provisions shall be acceptable to the Investor);

 

(q) Indebtedness incurred by the Company Parties incurred in compliance with Section 2 of the Letter Agreement in an aggregate amount not to exceed the limit set forth in the Intercreditor Agreement; and

 

(r) Permitted Refinancings of Permitted Debt (other than clauses (c)(ii), (d), and (f) of this definition of “Permitted Debt”).

 

Permitted Licensee” means a Third Party counterparty to a license entered into in the ordinary course of the Company’s Business in the development, manufacture, or commercialization of any Product.

 

Permitted Licenses” means, collectively, licenses of the Products in the Territory to a Permitted Licensee: provided, that, with respect to each such license:

 

(a) no Default or Event of Default has occurred or is continuing at the time of entry into such license;

 

(b) the license constitutes an arms-length transaction, the terms of which, on their face, do not provide for a sale or assignment from the Company, the Parent, or any of their respective Subsidiaries to a Third Party of any intellectual property that, at the time of execution of such license, comprises a portion of the Collateral (or assets that would constitute Collateral if owned by a Company Party), and do not restrict the ability of the Company or any of its Subsidiaries, as applicable, to pledge, grant a Lien on or assign or otherwise transfer such intellectual property (in each case other than customary non-assignment provisions that restrict the assignability of the license but do not otherwise restrict the ability of the Company or any Subsidiary (as applicable) to pledge, grant a Lien on or assign any such intellectual property); and

 

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(c) in the case of any exclusive license to Commercialize the Products, the Company delivers to the Investor a copy of the final executed exclusive license promptly upon consummation thereof, subject to reasonable redaction to comply with obligations of confidentiality.

 

Permitted Liens” means:

 

(a) Liens created in favor of the Investor pursuant to the Transaction Documents;

 

(b) any Lien on any property or asset of any Company Party or any of its Subsidiaries existing on the Closing Date and set forth on Schedule 1.2, provided that (i) no such Lien shall extend to any other property or asset of any Company Party or any of their Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(c) inchoate Liens for ad valorem property Taxes not yet delinquent;

 

(d) Liens in respect of property of the Company imposed by Applicable Law which were (i) incurred in the ordinary course of business (including, but not limited to, carriers’, warehousemen’s, distributors’, wholesalers’, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business) (ii) do not secure Indebtedness for borrowed money, and (iii) secure payment obligations (i) not then due, (ii) that if due, are not yet overdue by more than thirty (30) days, (iii) that if overdue by more than thirty (30) days, are being contested in good faith by appropriate proceedings and for which adequate reserves have been established and maintained in accordance with GAAP or (iv) with respect to which the failure to make payment could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

 

(e) Liens incurred in the ordinary course of business in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or benefits, insurance, surety bonds, or other obligations of a like nature or to secure the performance of letters of credit, banker’s acceptances, bids, tenders, statutory obligations, leases and contracts (other than for borrowed money) entered into in the ordinary course of business, other than any Lien imposed by ERISA which has resulted or would result in liability, together with any other Lien imposed by ERISA, in an aggregate amount in excess of $1,000,000;

 

(f) Liens for Taxes, assessments and governmental charges that are not delinquent or remain payable without any interest or penalty or that are being contested in good faith and with due diligence by appropriate proceedings and for which adequate reserves have been established and maintained in accordance with GAAP;

 

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(g) banker’s liens for collection or rights of set off or similar rights and remedies as to funds maintained with depositary institutions; provided that such funds are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the Company in excess of those required by applicable banking regulations;

 

(h) Liens on assets and rights that do not constitute any portion of the Collateral (or assets that would constitute Collateral if owned by a Company Party);

 

(i) Liens in favor of the Company or any Subsidiary;

 

(j) Liens on property or Equity Interests of another Person existing at the time such other Person becomes a Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such merger, amalgamation or consolidation and do not extend to any assets other than those of the Person that becomes a Subsidiary of the Company and provided, further that such Liens were granted to secure repayment of Acquired Debt.

 

(k) Liens on property of a Person existing at the time of acquisition thereof by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such acquisition and do not extend to any property other than the property so acquired by the Company or the Subsidiary and provided, further that such Liens were granted to secure repayment of Acquired Debt.

 

(l) Liens on Equity Interests of Subsidiaries that are not Guarantors;

 

(m) Liens securing judgments for the payment of money not constituting an Event of Default under clause (f) of the definition thereof;

 

(n) Liens securing Indebtedness permitted to be incurred under clause (k) of the definition of “Permitted Debt” covering only the assets acquired with or financed by such Indebtedness; provided that individual financings provided by one lender may be cross collateralized to other financings provided by such lender or its Affiliates;

 

(o) customary Liens incurred in the ordinary course of business to secure obligations in respect of payment processing services, business credit card programs, and netting services, overdrafts and related liabilities arising from treasury, depositary and cash management services;

 

(p) Liens on insurance policies, premiums and proceeds thereof, or other deposits, to secure insurance premium financings with respect to unearned premiums and other liabilities to insurance carriers;

 

(q) Liens on specific items of inventory or other goods (and the proceeds thereof) of the Company securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

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(r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;

 

(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

 

(t) any interest or title of a lessor or licensor under any lease, sublease, license or sublicense entered into by the Company or any Subsidiary entered into in the ordinary course of its business;

 

(u) Liens on cash collateral securing hedging agreements entered into for bona fide hedging purposes in the ordinary course of business and not for speculative purposes; and

 

(v) survey exceptions, encumbrances, ground leases, easements (including reciprocal easement agreements), or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including minor defects or irregularities in title and similar encumbrances) as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

(w) (i) Liens securing or arising out of Judgments or notices of lis pendens and associated rights related to litigation with respect to which such Person shall then be proceeding with an appeal or other proceedings for review, or in respect of which the period within which such appeal or proceedings may be initiated shall not have expired, and Liens on litigation proceeds securing obligations to pay expenses incurred in connection with such litigation and (ii) Liens arising from Judgments that do not constitute an Event of Default;

 

(x) Liens in favor of collecting or payor banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Subsidiary on deposit with or in possession of such bank;

 

(y) any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense;

 

(z) Liens on equipment or inventory of the Company or any Subsidiary granted in the ordinary course of business to the Company’s or such Subsidiary’s supplier at which such equipment or inventory is located;

 

(aa) Liens arising from precautionary Uniform Commercial Code financing statements regarding operating leases or consignments and other precautionary UCC financing statements or similar filings;

 

(bb) Liens on any assets held by a trustee (i) under any indenture or other debt instrument where the proceeds of the securities issued thereunder are held in escrow pursuant to customary escrow arrangements pending the release thereof, and (ii) under any indenture pursuant to customary discharge, redemption or defeasance provisions;

 

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(cc) Liens of (i) a collection bank arising under Section 4-210 of the Uniform Commercial Code (or any analogous statutory provision of applicable foreign Law) on items in the course of collection and which arise from general banking conditions, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or other financial institution arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of setoff) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institutions general terms and conditions;

 

(dd) Liens securing Indebtedness permitted to be incurred under clause (a) of the definition of “Permitted Debt”;

 

(ee) Liens securing Indebtedness permitted to be incurred under clause (q) of the definition of “Permitted Debt”; and

 

(ff) Liens on deposits or other amounts held in escrow to secure payments (contingent or otherwise) payable by the Company with respect to (i) the settlement, satisfaction, compromise or resolution or judgments, litigation, arbitration or other Disputes and (ii) any commercial contracts for manufacturing, production and other service arrangements entered into in the ordinary course of business.

 

Permitted Refinancing” means, with respect to any Indebtedness not prohibited from being refinanced, extended, renewed or replaced hereunder, any refinancings, extensions, renewals and replacements of such Indebtedness; provided that such refinancing, extension, renewal or replacement (A) shall be incurred by the same obligor as the Indebtedness being so refinanced and (B) shall not (i) increase the outstanding principal amount of the Indebtedness being refinanced, extended, renewed or replaced, (ii) contain terms relating to outstanding principal amount, amortization, maturity, collateral security (if any) or subordination (if any), or other material terms that are less favorable in any material respect to Parent and its Subsidiaries or the Investor than the terms of any agreement or instrument governing the Indebtedness being refinanced, extended, renewed or replaced, (iii) have an applicable interest rate or equivalent yield that exceeds the interest rate or equivalent yield of the Indebtedness being refinanced, extended, renewed or replaced, (iv) require or result in any Lien that is not a Permitted Lien, or (v) contain any new requirement to give guaranties that was not an existing requirement of the Indebtedness being refinanced, extended, renewed or replaced; provided further that after giving effect to such refinancing, extension, renewal or replacement, no Default or Event of Default shall have occurred and be continuing (or could reasonably be expected to immediately occur) as a result thereof.

 

Person” means any natural person, firm, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or any other legal entity, including public bodies, whether acting in an individual, fiduciary or other capacity.

 

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Personal Information” has the meaning set forth in ‎Section 4.24(b).

 

PIPE Transaction” means the acquisition by RTW of $15,000,000 worth of common shares of the Parent in a private placement, to occur in connection with the De-SPAC Transaction and the transactions contemplated by this Agreement.

 

Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan) that is maintained for employees of the Company or, in the case of any Pension Plan, any ERISA Affiliate or to which the Company or, in the case of any Pension Plan, any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

Prepayment Amount” has the meaning set forth in ‎Section 3.1(e).

 

Product Material Contract” means any Material Contract relating to the Products.

 

Product Patent Rights” means any Patent Rights relating to the Products, including the Owned Product Patent Rights and the Licensed Product Patent Rights.

 

Product Payment Amount” means, for each Calendar Quarter, an amount equal to the Applicable Tiered Percentage(s) multiplied by the applicable portion of Quarterly Net Sales for such Calendar Quarter. For clarity, the Applicable Tiered Percentage used to calculate the Product Payment Amount for a given Calendar Quarter will be based on the aggregate Net Sales in the Territory billed or invoiced in such Calendar Quarter and all prior Calendar Quarters in the applicable Calendar Year, and more than one Applicable Tiered Percentage may apply to any given Calendar Quarter if there are Net Sales in multiple payment tiers (as reflected in the definition of Applicable Tiered Percentage) during such Calendar Quarter. The Product Payment Amount for each Quarterly Payment Date shall be determined in a manner consistent with the example of such calculation set forth in Exhibit C.

 

Product Plan” means the Commercialization plan with respect to the Products presented to Investor during diligence, as set forth on Schedule 1.3.

 

Products” means (a) the Gastric Balloon and a suite of related and complementary digital products, and (b) any and all current and future products, digital solutions, and services developed, imported, manufactured, marketed, offered for sale, promoted, sold, tested or otherwise distributed by the Company or any of its Subsidiaries.

 

Proprietary Databases” means any material non-public proprietary database or information repository that is owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Proprietary Software” means any proprietary software (other than any software that is generally commercially available, off-the-shelf and/or open source) including, without limitation, the object code and source code forms of such software and all associated documentation, which is owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Purpose” has the meaning set forth in Section ‎9.1.

 

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Quarterly Net Sales” means, with respect to any Calendar Quarter, the aggregate amount of Net Sales in the Territory for that Calendar Quarter.

 

Quarterly Payment Date” means each March 31, May 15, August 15 and November 15 following the end of the first Calendar Quarter after the Closing Date (provided if any such date is not a Business Day, the Quarterly Payment Date shall be the next succeeding Business Day).

 

Quarterly Statements” has the meaning set forth in ‎Section 6.9(b).

 

Recipient” has the meaning set forth in Section ‎9.1.

 

Regulatory Agency” means a Governmental Authority with responsibility for the approval of the marketing and sale of medical devices or other regulation of medical devices in any jurisdiction.

 

Regulatory Approvals” means, collectively, all regulatory approvals, registrations, certificates, clearances, authorizations, permits and supplements thereto, as well as associated materials (including the product dossier) pursuant to which any Product may be researched, tested, developed, manufactured, marketed, sold and distributed in a jurisdiction, issued by the appropriate Regulatory Agency.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

Responsible Officer” means the chief executive officer, president, chief financial officer, chief operating officer, senior vice president, general counsel, managing director, vice president of finance, treasurer, assistant treasurer or controller of a Company Party and, solely for purposes of the delivery of certificates pursuant to this Agreement, the secretary or any assistant secretary of a Company Party. Any document delivered hereunder that is signed by a Responsible Officer of a Company Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Company Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Company Party.

 

Revenue Interests” means, for the period during the Payment Term, all of the Company’s rights, title and interest in and to, free and clear of any and all Liens (other than Liens securing Indebtedness under clause (a), (b) and (q) of the definition of “Permitted Debt”), that portion of the Annual Net Sales of the Company in an amount equal to the Product Payment Amount for each Calendar Quarter during the Payment Term.

 

Safety Notices” means any recalls, field notifications, market withdrawals, warnings, “dear doctor” letters, investigator notices, safety alerts or other notices of action issued or instigated by the Company, any Subsidiary or any Governmental Authority relating to an alleged lack of safety or regulatory compliance of the Products.

 

Sale and Leaseback Transaction” means, with respect to any Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

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Sanction(s)” means any sanction administered or enforced by the United States government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

 

SEC” means the Securities and Exchange Commission or any successor agency or authority thereto.

 

Securities Account” means a “securities account” (as defined in Article 8 of the Uniform Commercial Code) or other account to or for the credit or account of any Party to which a financial asset is or may be credited in accordance with an agreement under which the Person maintaining the account undertakes to treat the Person for whom the account is maintained as entitled to exercise the rights that comprise the financial asset.

 

Security Agreement” means that certain Security Agreement, dated as of the Closing Date, executed in favor of RTW Investments, LP, as agent for the Investor, by Merger Sub 2 and each of the Guarantors, substantially in the form of Exhibit F and as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Selling Party” has the meaning set forth in the definition of “Net Sales.”

 

Set-off” means any set-off, off-set, reduction or similar deduction.

 

Statement Period” has the meaning set forth in ‎Section 6.9(b).

 

Subsidiary” means with respect to any Person (a) any entity as to which such Person directly or indirectly owns outstanding voting securities with power to vote fifty percent (50%) or more of the outstanding Voting Stock of such entity or (b) any entity as to which fifty percent (50%) or more of its outstanding Voting Stock are directly or indirectly owned, controlled or held by such Person with power to vote such securities. As of the Effective Date, the Subsidiaries of the Company are set forth on Schedule 4.19. Unless stated otherwise, “Subsidiary” shall be understood to refer to a Subsidiary of the Company.

 

Tax” or “Taxes” means any U.S. federal, state, local or non-U.S. tax, levy, impost, duty, assessment or withholding or other similar fee, deduction or charge, including all excise, sales, use, value added, transfer, stamp, documentary, filing, recordation and other fees imposed by any taxing authority (and interest, fines, penalties and additions related thereto).“Territory” means worldwide, in each case, whether imposed directly or through withholding and whether or not disputed.

 

Term Loan Agent” has the meaning set forth in the definition of “Term Loan Documents”.

 

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Term Loan Documents” means that certain Credit and Guaranty Agreement to be dated on or about the Closing Date, among Merger Sub 2, Parent, the Subsidiary Guarantors party thereto, the Lenders from time to time parties thereto and Fortress Credit Corp., as the Administrative Agent (in such capacity, the “Term Loan Agent”) and each other Loan Document (as defined therein).

 

Third Party” means any Person other than (a) the Company or its Subsidiaries, (b) the Investor, (c) the Parent or its Subsidiaries, (d) an Affiliate of the Investor (as applicable).

 

Third Party Claim” means any claim, action, suit or proceeding by a Third Party, excluding any lender, officer, directors, employee or agent or other representative of a Party, including any investigation by any Governmental Authority.

 

Trade Secrets” means any data or information that is not commonly known by or available to the public, and which (a) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other Persons who can obtain economic value from its disclosure or use, (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, and (c) which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Trademark License” means any agreement, written or oral, providing for the grant of any right to use any Trademark.

 

Trademarks” means all statutory and common-law trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications to register in connection therewith, protected, created or arising under the Laws of the United States, under the Laws of any other country or jurisdiction, under any international convention, under the Laws of any state thereof or any political subdivision thereof, or otherwise, for the full term and all renewals thereof, which are owned by or licensed to the Company or any Subsidiary or with respect to which the Company or any Subsidiary is authorized or granted rights under or to.

 

Transaction Documents” means this Agreement, the Letter Agreement, the Intercreditor Agreement, the Security Agreement, the Guaranty, any Joinder Agreement, any related ancillary documents or agreements executed, or to be executed, by any Company Party, and, if elected by the Investor pursuant to the Letter Agreement, the Additional Revenue Interest Financing Agreement (as defined in the Letter Agreement).

 

Transaction Expenses” means the aggregate amount of any and all documented out-of-pocket fees and expenses reasonably incurred by or on behalf of, or paid directly by, the Investor in connection with the diligence of the transactions contemplated hereby, and the negotiation, preparation and execution of the Transaction Documents; provided, however, that the Transaction Expenses shall not exceed $250,000.

 

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Treasury Management Arrangement” means any agreement or other arrangement governing the provision of treasury or cash management services, including Deposit Accounts, netting services, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting, direct debit, cash concentration, trade finance services and other cash management services.

 

U.S.” or “United States” means the United States of America, its 50 states, each territory and possession thereof and the District of Columbia.

 

UCC” means the Uniform Commercial Code as in effect from time to time in New York; provided, that, if, with respect to any financing statement or by reason of any provisions of Applicable Law, the perfection or the effect of perfection or non-perfection of the security interests or any portion thereof granted pursuant to the Security Agreement is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of this Agreement and any financing statement relating to such perfection or effect of perfection or non-perfection.

 

Under Performance Payment” has the meaning set forth in ‎Section 3.1(b).

 

Valid Claim” shall mean: (a) any claim of an issued and unexpired Patent, that shall not have been withdrawn, lapsed, abandoned, revoked, canceled or disclaimed, or held invalid or unenforceable by a court, Governmental Authority, national or regional patent office or other appropriate body that has competent jurisdiction in a decision being final and unappealable or unappealed within the time allowed for appeal; and (b) a claim of a pending Patent application that is filed and being prosecuted in good faith and that has not been finally abandoned or finally rejected and which has been pending for no more than five (5) years from its filing date.

 

Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.

 

Website Agreements” means all agreements between the Company and/or any Subsidiary and any other Person pursuant to which such Person provides any services relating to the hosting, design, operation, management or maintenance of any Website, including without limitation, all agreements with any Person providing website hosting, database management or maintenance or disaster recovery services to the Company and/or any Subsidiary and all agreements with any domain name registrar, as all such agreements may be amended, supplemented or otherwise modified from time to time.

 

Websites” means all websites that the Company or any Subsidiary shall operate, manage or control through a Domain Name, whether on an exclusive basis or a nonexclusive basis, including, without limitation, all content, elements, data, information, materials, hypertext markup language (HTML), software and code, works of authorship, textual works, visual works, aural works, audiovisual works and functionality embodied in, published or available through each such website and all IP Rights in each of the foregoing.

 

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Work” means any work or subject matter that is subject to protection pursuant to Title 17 of the United States Code.

 

Section 1.2 Rules of Construction. Unless the context otherwise requires, in this Agreement:

 

(a) An accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP. Notwithstanding anything in this Agreement to the contrary, any obligations of a Person under a lease that is not (or would not be) required to be classified and accounted for as a capital lease obligation on a balance sheet of such Person (whether or not on such balance sheet prior to December 31, 2018) under GAAP as in effect prior to December 31, 2018, shall not be treated as a capital lease obligation as a result of the adoption of changes in GAAP or changes in the application of GAAP (including as a result of FASB ASC Update No. 2016-02, Leases (Topic 842)) and shall continue to be treated as an operating lease.

 

(b) Words of the masculine, feminine or neuter gender shall mean and include the correlative words of other genders.

 

(c) The definitions of terms shall apply equally to the singular and plural forms of the terms defined.

 

(d) The terms “include”, “including” and similar terms shall be construed as if followed by the phrase “without limitation”.

 

(e) Unless otherwise specified, references to an agreement or other document include references to such agreement or document as from time to time amended, restated, reformed, supplemented or otherwise modified in accordance with the terms thereof (subject to any restrictions on such amendments, restatements, reformations, supplements or modifications set forth herein or in any of the other Transaction Documents) and include any annexes, exhibits and schedules attached thereto.

 

(f) References to any Applicable Law shall include such Applicable Law as from time to time in effect, including any amendment, modification, codification, replacement or reenactment thereof or any substitution therefor.

 

(g) References to any Person shall be construed to include such Person’s successors and permitted assigns (subject to any restrictions on assignment, transfer or delegation set forth herein or in any of the other Transaction Documents), and any reference to a Person in a particular capacity excludes such Person in other capacities.

 

(h) The word “will” shall be construed to have the same meaning and effect as the word “shall”.

 

(i) The words “hereof”, “herein”, “hereunder” and similar terms when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision hereof, and Article, Section and Exhibit references herein are references to Articles and Sections of, and Exhibits to, this Agreement unless otherwise specified.

 

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(j) In the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and each of the words “to” and “until” means “to but excluding”.

 

(k) Where any payment is to be made, any funds are to be applied or any calculation is to be made under this Agreement on a day that is not a Business Day, unless this Agreement otherwise provides, such payment shall be made, such funds shall be applied and such calculation shall be made on the succeeding Business Day, and payments shall be adjusted accordingly.

 

(l) Unless otherwise specified, references to an agreement or other document include references to such agreement or document as from time to time amended, restated, reformed, supplemented or otherwise modified in accordance with the terms thereof (subject to any restrictions on such amendments, restatements, reformations, supplements or modifications set forth herein or in any of the other Transaction Documents) and include any annexes, exhibits and schedules attached thereto.

 

ARTICLE II
REVENUE INTEREST FINANCING

 

Section 2.1 Investment Amount. Subject to the terms and conditions set forth herein, at the Closing, subject to the performance of the obligations set forth in ‎Section 8.2 and the satisfaction or waiver of the conditions set forth in ‎Section 8.3, the Investor shall pay (or cause to be paid) to the Company, or the Company’s designee, the sum of forty million Dollars ($40,000,000) (the “Investment Amount”), in immediately available funds by wire transfer to an account designated in writing by the Company to the Investor prior to such funding; provided, that the Investor shall have the right to, at its option, fund the Investment Amount on a net basis less the reimbursement owed by the Company pursuant to ‎Section 8.3(d)(ii).

 

Section 2.2 No Assumed Obligations. Notwithstanding any provision in this Agreement or any other writing to the contrary, the Investor is not assuming any liability or obligation of the Company or any of the Company’s Affiliates of whatever nature, whether presently in existence or arising or asserted hereafter. All such liabilities and obligations shall be retained by and remain liabilities and obligations of the Company or the Company’s Affiliates, as the case may be (the “Excluded Liabilities and Obligations”).

 

Section 2.3 Excluded Assets. The Investor does not, pursuant to any of the Transaction Documents, purchase, acquire or accept any assets or contract rights of the Company, or any other assets of the Company, other than its rights with respect to the Revenue Interests and, to the extent provided in the Transaction Documents, the other Collateral. The Company has sole authority and responsibility for the research, development and Commercialization of the Products.

 

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ARTICLE III

Payments On Account OF THE REVENUE INTEREST Financing

 

Section 3.1 Payments on Account of the Revenue Interest Financing. During the Payment Term:

 

(a) In consideration of the Investor paying the Investment Amount hereunder, on each Quarterly Payment Date, the Company shall pay the applicable Product Payment Amount to the Investor or the Investor’s designee. The Company shall have the right, at any time and from time to time, to make voluntary prepayments to the Investor or the Investor’s designee, and such payments shall be credited against the Hard Cap and the Under Performance Payments set forth in ‎Section 3.1(b). This Agreement shall be in full force and effect for the duration of the Payment Term.

 

(b) If the Investor has not received payments equal to one hundred percent (100%) of the Investment Amount by December 31, 2027 (after giving effect to any payments made on or prior to such date), the Company shall, within thirty (30) calendar days of December 31, 2027, make a cash payment to the Investor or the Investor’s designee in an amount equal to one hundred percent (100%) of the Investment Amount less the aggregate amount of all of the payments by the Company in respect of the Revenue Interests made to the Investor prior to such date (the “Under Performance Payment”).

 

(c) Upon the occurrence of a Change of Control, the Company shall promptly make a cash payment to the Investor or the Investor’s designee in an amount equal to the Hard Cap less the aggregate amount of all of the payments by the Company in respect of the Revenue Interests made to the Investor prior to such date (the “Change of Control Payment”).

 

(d) If the Investor has not received payments equal to two hundred forty percent (240%) of the Investment Amount by the Legal Maturity Date (after giving effect to any payments made on or prior to the Legal Maturity Date), the Company shall, within thirty (30) calendar days of the Legal Maturity Date, make a cash payment to the Investor or the Investor’s designee in an amount equal to two hundred forty percent (240%) of the Investment Amount less the aggregate amount of all of the payments by the Company in respect of the Revenue Interests made to the Investor prior to such date (the “Maturity Payment”).

 

(e) Prior to March 31, 2026, the Company may make a cash payment to the Investor or the Investor’s designee in an amount equal to one hundred sixty-five percent (165%) of the Investment Amount less the aggregate amount of all of the payments by the Company in respect of the Revenue Interests made to the Investor prior to such date (the “Prepayment Amount”).

 

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(f) Once the Investor has received (i) payments under Section 3.1(a) and, if required, Section 3.1(b), in an aggregate amount equal to the Hard Cap, (ii) the amounts due pursuant to ‎Section 3.1(c), or (iii) (A) if an Event of Default has occurred and is continuing, the Hard Cap or (B) if no Event of Default has occurred and is continuing, the amounts due pursuant to ‎Section 3.1(d) or ‎Section 3.1(e), in each case (i), (ii) and (iii), along with all of the other Obligations owed by the Company Parties under this Agreement and the other Transaction Documents, (1) the Company shall have no further obligations to the Investor with respect to the Revenue Interests, and the Investor will not be entitled to any additional payments in respect of the Revenue Interests and (2) each of the Transaction Documents shall terminate. Immediately upon termination of this Agreement pursuant to this ‎Section 3.1(f), (x) all Liens on the Collateral granted to the Investor pursuant to this Agreement and the other Transaction Documents shall automatically be released, without the delivery of any instrument or performance of any act by any Person, (y) the Company shall be permitted, and is hereby authorized, to terminate any financing statement which has been filed pursuant to the Transaction Documents, and (z) the Investor shall promptly make any filings and execute and deliver to, or at the direction of, the Company, at the Company’s sole cost and expense, all other releases and other documents as the Company shall reasonably request to evidence any such release.

 

(g) All Product Payment Amounts and any other Obligations required to be paid but not paid to the Investor on each Quarterly Payment Date shall bear interest at a rate of one percent (1.0%) per month from the due date until paid in full or, if less, the maximum interest rate permitted by Applicable Law. In addition, in the event that an Event of Default has occurred, and for so long as it is occurring, interest shall accrue on the Final Payment Amount that remains unpaid at a rate of one percent (1.0%) per month from the date on which Company receives notice from the Investor of such Event of Default until the Final Payment Amount is paid in full or, if less, the maximum interest rate permitted by Applicable Law. Any such overdue payment shall, when made, be accompanied by, and credited first to, all interest so accrued.

 

(h) The Company shall make all payments to the Investor in immediately available funds by wire transfer to an account designated in writing by the Investor to the Company prior to such payments.

 

(i) Any amounts deducted or withheld pursuant to ‎Section 6.21 shall be treated as paid to the Investor for all purposes of the Transaction Documents.

 

Section 3.2 Mode of Payment/Currency Exchange. All payments made by a Party hereunder shall be made by deposit of U.S. Dollars by wire transfer in immediately available funds into the applicable account. With respect to sales outside the U.S., for the purpose of calculating Net Sales for the purposes of determining the Revenue Interests payable under ‎Section 3.1, Net Sales shall be calculated, if pursuant to a License Agreement, in the currency set forth therein, or otherwise in the currency of sale, and then such amounts shall be converted into U.S. Dollars at the monthly rate of exchange utilized by the Company, in accordance with GAAP, fairly applied and as employed on a consistent basis throughout the Company’s operations. Should the Company change its foreign currency translation methodology, the new methodology will be disclosed in writing to the Investor promptly following implementation. For clarity, to the extent that the Company receives a payment from a Third Party in U.S. Dollars on which Revenue Interests are payable to the Investor under ‎Section 3.1, the foregoing currency exchange rates shall not apply to such amount, and in particular the Company will have no obligation to re-calculate any currency conversion that was employed in connection with such Third Party payment.

 

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Section 3.3 Product Payment Reports and Record Retention. On or prior to each Quarterly Payment Date, the Company shall deliver to the Investor (i) a written report of the amount of gross sales of the Products in each country during the applicable Calendar Quarter, an itemized calculation of Net Sales on a country-by-country basis and a calculation of the amount of the Product Payment Amount due under ‎Section 3.1(a) in respect of the applicable Calendar Quarter, showing the Applicable Tiered Percentage(s) applied thereto and a calculation of the Under Performance Payment (if any) pursuant to ‎Section 3.1(b) or the Maturity Payment (if any) pursuant to ‎Section 3.1(d), and (ii) copies of the most recent quarterly statements for each Deposit Account, Securities Account and any other bank account or securities account of the Company and each other Grantor and (iii) a Compliance Certificate relating to each of the items described in clauses (i) and (ii) of this sentence. For three (3) years after each sale of the Products made by the Company, the Parent, or any of their respective Subsidiaries, the Company shall keep (and shall ensure that the Parent or the applicable Subsidiary shall keep) complete and accurate records of such sale in sufficient detail to confirm the accuracy of the applicable Revenue Interests paid pursuant to ‎Section 3.1(a). The Company shall use commercially reasonable efforts to include, in each contract of the Company for the distribution, marketing or selling of the Products entered into on or after the Closing Date, obligations reasonably appropriate to ensure that the counterparty to such contract shall furnish to the Company all information necessary for the Company to comply with this ‎Section 3.3 and calculate the Revenue Interests that are payable as set forth in this Agreement.

 

Section 3.4 Audits.

 

(a) Upon the written request of the Investor, and not more than once in each Calendar Year (so long as no Default or Event of Default has occurred and is continuing), the Company shall permit an independent certified public accounting firm of national prominence selected by the Investor, and reasonably acceptable to the Company, to have access to and to review, during normal business hours and upon not less than thirty (30) days’ prior written notice, the relevant documents and records of the Company and its Subsidiaries as may reasonably be necessary to verify the accuracy and timeliness of the reports and payments (including calculation and payment of any Revenue Interests) made by the Company under this Agreement. Such review may cover the records for sales or other dispositions of the Products, and Net Sales in any Calendar Year ending no earlier than the first day of the previous Calendar Year. The accounting firm shall be permitted to prepare and disclose to the Investor a written report stating only whether Revenue Interests paid to the Investor hereunder and the reports provided by the Company relating to such Revenue Interests required hereunder are correct or incorrect and the specific details concerning any discrepancies. Notwithstanding the foregoing, after the occurrence and during the continuance of a Default or Event of Default, the Investor shall have the right, as often, at such times and with such prior notice, as the Investor shall determine, in its reasonable discretion, to have an independent certified public accounting firm of national prominence selected by the Investor review the relevant documents and records of the Company and its Subsidiaries.

 

(b) If such accounting firm reasonably concludes that any Revenue Interests were owed and were not paid when due during such period pursuant to the provisions of this Agreement, the Company shall pay any late or unpaid Revenue Interests within sixty (60) days after the date the Investor delivers to the Company a notice including the accounting firm’s written report and requesting such payment. If the amount of the underpayment (exclusive of interest accrued thereon pursuant to ‎Section 3.1(a)) is greater than the lesser of (i) ten percent (10%) of the total amount actually owed for the period audited or (ii) one million dollars ($1,000,000), then the Company shall in addition (i) reimburse the Investor for all reasonable costs and fees of the accounting firm related to such audit and (ii) pay interest accrued on such amount of the underpayment at a rate of one percent (1%) per month from the initial due date until paid in full or, if less, the maximum interest rate permitted by Applicable Law. In the event of overpayment, any amount of such overpayment shall be fully creditable against Revenue Interests payable for the immediately succeeding Calendar Quarter(s). If the overpayment is not fully applied prior to the final quarterly Revenue Interests payment due hereunder, the Investor shall promptly refund to the Company an amount equal to any such remaining overpayment. The Investor shall (i) treat all information that it receives under this ‎Section 3.3 or under any License Agreement of the Company in accordance with the provisions of ‎ARTICLE IX and (ii) cause its accounting firm to enter into a reasonably acceptable confidentiality agreement with the Company obligating such firm to retain all such information in confidence pursuant to such confidentiality agreement, in each case except to the extent necessary for the Investor to enforce its rights under this Agreement.

 

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE Company

 

Except as set forth in the disclosure schedules attached hereto, the Company hereby represents and warrants to the Investor as of the Effective Date and as of the Closing Date as follows:

 

Section 4.1 Organization. The Company is a corporation or limited liability company, as applicable, duly organized, validly existing and in good standing under the laws of the State of Delaware and has all powers and authority, and all licenses, permits, franchises, authorizations, consents and approvals of all Governmental Authorities, required to own its property and conduct its business as now conducted. The Company is duly qualified to transact business and is in good standing in every jurisdiction in which such qualification or good standing is required by Applicable Law (except where the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect).

 

Section 4.2 No Conflicts.

 

(a) None of the execution and delivery by the Company of any of the Transaction Documents to which the Company is party, the performance by the Company of the obligations contemplated hereby or thereby or the consummation of the transactions contemplated hereby or thereby will: (i) contravene or conflict with, result in a violation of, any Applicable Law or any Judgment, permit or license of any Governmental Authority to which the Company or any of its Subsidiaries or any of their respective assets or properties may be subject or bound, except where any such event could not, individually or when aggregated with other such events, reasonably be expected to result in a Material Adverse Effect, (ii) contravene or conflict with, result in a breach, violation, cancellation or termination of, constitute a default (with or without notice or lapse of time, or both) under, require prepayment under, give any Person the right to exercise any remedy (including termination, cancellation or acceleration) or obtain any additional rights under, or accelerate the maturity or performance of or payment under, in any respect, (A) any term or provision of any Material Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective assets or properties is bound or committed or (B) any term or provision of any of the organizational documents of the Company or any of its Subsidiaries; or (iii) except as provided in any of the Transaction Documents to which it is party, result in or require the creation or imposition of any Lien on the Collateral, other than Permitted Liens.

 

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(b) The Company has not granted, nor does there exist, any Lien on the Transaction Documents or the Collateral, other than Permitted Liens.

 

Section 4.3 Authorization. The Company has all powers and authority to execute and deliver, and perform its obligations under, the Transaction Documents to which it is party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of each of the Transaction Documents to which the Company is party and the performance by the Company of its obligations hereunder and thereunder have been duly authorized by the Company. Each of the Transaction Documents to which the Company is party has been duly executed and delivered by the Company. Each of the Transaction Documents to which the Company is party constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar Applicable Laws affecting creditors’ rights generally, general equitable principles and principles of public policy.

 

Section 4.4 Ownership. The Company is the exclusive owner of all right, title (legal and equitable) and interest in, to and under the Collateral, free and clear of all Liens, other than Permitted Liens. The Revenue Interests sold, assigned, transferred, conveyed and granted to the Investor on the Closing Date and the other Collateral have not been pledged, sold, assigned, transferred, conveyed or granted by the Company to any other Person (other than Permitted Liens). The Company has full right to sell, assign, transfer, convey and grant the Revenue Interests, and the full right to grant the other Collateral, to the Investor. Upon the sale, assignment, transfer, conveyance and granting by the Company of the Revenue Interests to the Investor, the Investor shall acquire good and marketable title to the Revenue Interests free and clear of all Liens, other than Permitted Liens, and shall be the exclusive owners of the Revenue Interests. The Company has not caused, and to the Knowledge of the Company no other Person has caused, the claims and rights of the Investor created by any Transaction Document in and to the Revenue Interests or the Collateral to be subordinated to any creditor or any other Person (except as set forth in the Intercreditor Agreement).

 

Section 4.5 Governmental and Third Party Authorizations. The execution and delivery by the Company of the Transaction Documents to which the Company is party, the performance by the Company of its obligations hereunder and thereunder and the consummation of any of the transactions contemplated hereunder and thereunder (including the sale, assignment, transfer, conveyance and granting of the Revenue Interests to the Investor) do not require any consent, approval, license, order, authorization or declaration from, notice to, action or registration by or filing with any Governmental Authority or any other Person, except for applicable filings under U.S. securities laws, and those previously obtained or made or to be obtained or made on the Closing Date.

 

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Section 4.6 No Litigation. There is no action, suit, arbitration proceeding, claim, citation, summons, subpoena, or other proceeding (whether civil, criminal, administrative, regulatory, or informal, and including by or before a Governmental Authority), or to the Knowledge of the Company any investigation, pending or, to the Knowledge of the Company threatened, by or against the Company or any of its Subsidiaries, at law or in equity, that (i) if adversely determined, could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or (ii) challenges or seeks to prevent or delay the consummation of any of the transactions contemplated by any of the Transaction Documents to which the Company is party.

 

Section 4.7 Solvency. The Company has determined that, and by virtue of its entering into the transactions contemplated by the Transaction Documents to which the Company is party and its authorization, execution and delivery of the Transaction Documents to which the Company is party, the Company’s incurrence of any liability hereunder or thereunder or contemplated hereby or thereby is in its own best interests. Upon consummation of the transactions contemplated by the Transaction Documents and the application of the proceeds therefrom, (a) the fair saleable value of the Company’s assets will be greater than the sum of its debts, liabilities and other obligations, including known contingent liabilities, (b) the present fair saleable value of the Company’s assets will be greater than the amount that would be required to pay its probable liabilities on its existing debts, liabilities and other obligations, including known contingent liabilities, as they become absolute and matured, (c) the Company will be able to realize upon its assets and pay its debts, liabilities and other obligations, including known contingent obligations, as they mature, (d) the Company will not have unreasonably small capital with which to engage in its business and will not be unable to pay its debts as they mature, (e) the Company has not incurred, will not incur and does not have any present plans or intentions to incur debts or other obligations or liabilities beyond its ability to pay such debts or other obligations or liabilities as they become absolute and matured, (f) the Company will not have become subject to any Bankruptcy Event and (g) the Company will not have been rendered insolvent within the meaning of any Applicable Law. No step has been taken or is intended by the Company or, to its Knowledge, any other Person to make the Company subject to a Bankruptcy Event.

 

Section 4.8 No Brokers’ Fees. The Company has not taken any action that would entitle any person or entity to any commission or broker’s fee in connection with the transactions contemplated by this Agreement.

 

Section 4.9 Compliance with Laws. None of the Company or any of its Subsidiaries (a) has violated or is in violation of, or, to the Knowledge of the Company, is under investigation with respect to or has been threatened to be charged with or been given notice of any violation of, any Applicable Law or any Judgment, permit or license granted, issued or entered by any Governmental Authority or (b) is subject to any Judgment, permit or license granted, issued or entered by any Governmental Authority, in each case, that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Each of the Company and each Subsidiary of the Company is in compliance in all material respects with the requirements of all Applicable Laws.

 

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Section 4.10 Intellectual Property Matters.

 

(a) Schedule 4.10(a) sets forth an accurate and complete list of the Company’s currently subsisting Patent Rights, including a complete and accurate list of the currently subsisting Owned Product Patent Rights. The Company does not have any Licensed Product Patent Rights. For each Patent Right set forth on Schedule 4.10(a), the Company has indicated: (i) the application number (if any); (ii) the patent or registration number (if any); (iii) the country or other jurisdiction where such Patent Right was issued, registered, or filed; (iv) the scheduled expiration date of any issued Patent Right, including a notation if such scheduled expiration date includes a term extension or supplementary protection certificate; and (v) the registered owner thereof.

 

(b) The Company is the sole and exclusive owner of all right, title and interest in each of the Owned Product Patent Rights. The Owned Product Patent Rights are not subject to any encumbrance, Lien or claim of ownership by any Third Party (other than Liens securing Indebtedness permitted to be incurred under clause (a) of the definition of “Permitted Debt”), and, to the Knowledge of the Company, there are no facts that would preclude the Company from having unencumbered title to the Owned Product Patent Rights. Neither the Company nor its Subsidiaries has received any notice of any claim by any Third Party challenging the ownership of the rights of the Company in and to the Owned Product Patent Rights.

 

(c) To the Knowledge of the Company, (i) (A) no Owned Product Patent Right set forth on Schedule 4.10(a) and (B) no material Owned Product Patent Right has lapsed, expired been abandoned, or otherwise been terminated, except for any such material issued Owned Product Patent Right that expired in accordance with its statutory terms or any material Owned Product Patent Right applications that terminated by operation of law.

 

(d) To the Knowledge of the Company, there are no unpaid maintenance fees, annuities or other like payments that are overdue with respect to the Owned Product Patent Rights.

 

(e) To the Knowledge of the Company, each of the Owned Product Patent Rights correctly identifies each and every inventor of the claims thereof as determined in accordance with the laws of the jurisdiction in which such Product Patent Right was issued or is pending. Each such inventor has executed an assignment assigning their entire right, title and interest in and to such Patent Rights and the inventions embodied, described and/or claimed therein, to the Company or to an entity that has in turn executed an assignment assigning their entire right, title and interest in and to such Patent Rights and the inventions embodied, described and/or claimed therein, to the Company, and each such assignment has been duly recorded at the United States Patent and Trademark Office. To the Knowledge of the Company, there is not any Person who is or claims to be an inventor of any of the Owned Product Patent Rights who is not a named inventor thereof. Neither the Company nor its Subsidiaries has received any notice from any Person who is or claims to be an inventor of any of the Owned Product Patent Rights who is not a named inventor thereof.

 

(f) To the Knowledge of the Company, each of the Product Patent Rights set forth on Schedule 4.10(a) is valid, enforceable and in full force and effect. Neither the Company nor its Subsidiaries has received any opinion of counsel that any of the Patent Rights is, and, to the Knowledge of the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time, or both) could, individually or in the aggregate, reasonably be expected to result in any of the Patent Rights becoming, invalid or unenforceable. Neither the Company nor its Subsidiaries has received any notice of any claim by any Third Party challenging the validity or enforceability of any of the Patent Rights.

 

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(g) To the Knowledge of the Company, each individual associated with the filing and prosecution of the Owned Product Patent Rights has complied in all material respects with all applicable duties of candor and good faith in dealing with any Patent Office, including any duty to disclose to any Patent Office all information known by such individual to be material to patentability of each such Owned Product Patent Right, in those jurisdictions where such duties exist.

 

(h) There is at least one valid claim in each of the Owned Product Patent Rights set forth on Schedule 4.10(a) Covering the Products that would be infringed by the Company’s or any Subsidiary’s Commercialization of the Products but for the Company’s and the Subsidiaries’ rights in such Patent Rights.

 

(i) To the Knowledge of the Company, except for information disclosed to the applicable Patent Office during prosecution of the Owned Product Patent Rights, there are no Patents, published patent applications, articles, abstracts or other prior art deemed material to patentability of any of the inventions claimed in the Owned Product Patent Rights, or that would otherwise reasonably be expected to materially adversely affect the validity or enforceability of any of the claims of such Owned Product Patent Rights.

 

(j) There is no pending or, to the Knowledge of the Company, threatened opposition, interference, reexamination, injunction, claim, suit, action, citation, summons, subpoena, hearing, inquiry, investigation (by the International Trade Commission or otherwise), complaint, arbitration, mediation, demand, decree or other dispute, disagreement, proceeding, claim or inter partes review (in each case, other than standard patent prosecution before a Patent Office) (collectively, “Disputes”) challenging the legality, validity, enforceability or ownership of any of the Patent Rights set forth on Schedule 4.10(a) or that would result in any Set-off against the payments due to the Investor under this Agreement. To the Knowledge of the Company, there are no Disputes by or with any Third Party against the Company involving the Product Patent Rights. The Patent Rights set forth on Schedule 4.10(a) are not subject to any outstanding injunction, Judgment, ruling, challenge, settlement or other disposition of a Dispute.

 

(k) Except as disclosed on Schedule 4.10(k), to the Knowledge of the Company, and except as separately disclosed to the Investor, there is no pending or threatened, and no event has occurred or circumstance exists that (with or without notice or lapse of time, or both) would result in or serve as a basis for any, action, suit or proceeding, or any investigation or claim, and the Company has not received any written notice of the foregoing, that claims that the manufacture, use, marketing, sale, offer for sale, importation or distribution of the Products as currently contemplated infringes on any Patent or other intellectual property rights of any other Person or constitutes misappropriation of any other Person’s trade secrets or other intellectual property rights. Except as disclosed on Schedule 4.10(k), the Company has not received any notice of any claim by any Third Party asserting that the Company’s Commercialization of the Products infringes such Third Party’s Patents.

 

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(l) To the Knowledge of the Company, none of the conception, development and reduction to practice of the inventions claimed in the Owned Product Patent Rights has constituted or involved the misappropriation of trade secrets or other rights or property of any Third Party.

 

(m) No Company Party has filed any disclaimer, other than a terminal disclaimer, or made or permitted any other voluntary reduction in the scope of any Owned Product Patent Right other than by patent claim amendments that occurred during the normal course of patent prosecution of any such owned Product Patent Right.

 

(n) To the Knowledge of the Company, no Third Party’s Patent has been, or is, or will be, infringed by the Company’s Commercialization of the Products. To the Knowledge of the Company, no Patent Rights other than the Product Patent Rights would limit or prohibit in any material respect the Company’s Commercialization of the Products. The Company has not received any opinion of counsel regarding infringement or non-infringement of any Third Party’s Patents by the Company’s Commercialization of the Products.

 

(o) To the Knowledge of the Company, there are no pending, published patent applications owned by any Third Party, which the Company does not have the right to use, which, if issued with claims reasonably likely to issue, would limit or prohibit in any material respect the Company’s Commercialization of the Products.

 

(p) To the Knowledge of the Company, no Third Party is infringing any of the issued Patent Rights. Neither the Company nor its Subsidiaries has put any Third Party on notice of any infringement of the issued Patent Rights.

 

(q) There are no Copyrights, Trademarks, Trade Secrets or domain names material to the Commercialization of the Products by the Company.

 

(r) To the Knowledge of the Company, the Product Patent Rights constitute all of the Patents necessary for the Commercialization of the Products.

 

Section 4.11 Margin Stock. The Company is not engaged in the business of extending credit for the purpose of buying or carrying margin stock, and no portion of the Investment Amount shall be used by the Company for a purpose that violates Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.

 

Section 4.12 Material Contracts.

 

(a) Schedule 4.12(a) hereto contains a list of the Material Contracts as of the date hereof and as of the Closing Date. As of the date hereof and as of the Closing Date, the Company has provided a true and complete copy of each Material Contract to the Investor.

 

(b) Except as separately disclosed in writing to the Investor, neither the Company nor, to the Knowledge of the Company, any Material Contract Counterparty is in material breach or material default of any Material Contract and no circumstances or grounds exist that would, upon the giving of notice, the passage of time or both, give rise (i) to a claim by the Company or any Material Contract Counterparty of a material breach or material default of any Material Contract, or (ii) to a right of rescission, termination, revision, or set-off by any Person, in, to or under any Material Contract. The Company has not received from, or delivered to, any Material Contract Counterparty, any notice alleging a breach or default under any Material Contract.

 

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(c) Each Material Contract is a valid and binding obligation of the Company and, to the Knowledge of the Company, of the applicable Material Contract Counterparty, enforceable against each of the Company and, to the Knowledge of the Company, each applicable Material Contract Counterparty in accordance with its terms, except as may be limited by general principles of equity (regardless of whether considered in a proceeding at law or in equity) and by applicable bankruptcy, insolvency, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally. The Company has not received any notice from any Material Contract Counterparty or any other Person challenging the validity or enforceability of any Material Contract. Neither the Company, nor to the Knowledge of the Company, any other Person, has delivered or intends to deliver any notice to the Company or a Material Contract Counterparty challenging the validity or enforceability of any Material Contract.

 

(d) There are no settlements, covenants not to sue, consents, judgements, orders or similar obligations which: (i) restrict the rights of the Company or any of its Subsidiaries from using any Intellectual Property relating to the research, development, manufacture, production, use, commercialization, marketing, importing, storage, transport, offer for sale, distribution or sale of the Products (in order to accommodate any third party Intellectual Property or otherwise), or (ii) permit any Third Parties to use any Intellectual Property of the Company.

 

Section 4.13 Bankruptcy. Neither the Company nor, to the Knowledge of the Company, any Material Contract Counterparty is contemplating or planning to commence any case, proceeding or other action relating to such Material Contract Counterparty’s bankruptcy, insolvency, liquidation or dissolution or reorganization.

 

Section 4.14 Office Locations; Names.

 

(a) The chief place of business, the chief executive office and each office where each Grantor keeps its records regarding the Collateral are, as of the date hereof and as of the Closing Date, each located at 11 Huron Drive, Natick, Massachusetts 01760.

 

(b) As of the date hereof, neither the Company nor any of its Subsidiaries (or any predecessor by merger or otherwise) has, within the five (5) year period preceding the date hereof, had a name that differs from its name as of the date hereof.

 

Section 4.15 Financial Statements; No Material Adverse Effect.

 

(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (ii) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (iii) show all material Indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof, including material liabilities for Taxes, commitments and Indebtedness to the extent required by GAAP. The Interim Financial Statements (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (B) fairly present in all material respects the financial condition of the Company and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, and (C) show all material Indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as of the date thereof, including material liabilities for Taxes, material commitments and Indebtedness to the extent required by GAAP, subject, in the case of clauses (A), (B) and (C) of this sentence, to the absence of footnotes and to normal year-end audit adjustments.

 

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(b) From the date of the Audited Financial Statements to and including the Closing Date, there has been no Disposition by any Company Party or any Subsidiary, or any Involuntary Disposition, of any material part of the business or property of any Company Party or any Subsidiary, and no purchase or other acquisition by any of them of any business or property (including any Equity Interests of any other Person) material to any Company Party or any Subsidiary, in each case, which is not reflected in the Financial Statements or in the notes thereto and has not otherwise been disclosed in writing to the Investor on or prior to the Closing Date.

 

(c) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to result in a Material Adverse Effect.

 

Section 4.16 No Default.

 

(a) Neither any Company Party nor any Subsidiary is in default (with or without notice or lapse of time, or both) under or with respect to any Contractual Obligation that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(b) No Default or Event of Default has occurred and is continuing.

 

Section 4.17 Insurance. The properties of the Company and each of its Subsidiaries are insured with financially sound and reputable insurance companies which are not Affiliates of such Persons, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Subsidiary operates.

 

Section 4.18 ERISA Compliance.

 

(a) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Laws, and (ii) each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Internal Revenue Code, an application for such a letter is currently being processed by the Internal Revenue Service or is entitled to rely on the opinion or advisory letter issued by the Internal Revenue Service to the sponsor of a preapproved plan document and, to the Knowledge of the Company, nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.

 

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(b) There are no pending or, to the Knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company has not engaged in any prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan, in any case, that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(c) Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred with respect to any Pension Plan, (ii) the Company and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained, and (iii) neither the Company nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums due but not delinquent under Section 4007 of ERISA.

 

Section 4.19 Subsidiaries. Set forth on Schedule 4.19 is a complete and accurate list as of the date hereof and as of the Closing Date of each Subsidiary of the Company, together with (a) such Subsidiary’s jurisdiction of organization and (b) the percentage of the Equity Interests in such Subsidiary owned by the Company. Except for any Guarantors, no Subsidiary of the Company or the Parent owns any portion of the Collateral, holds or maintains any Regulatory Approval necessary or required for any Product commercialization and development activities, owns or operates any manufacturing or similar facility involved in Product commercialization and development activities, owns or licenses any material Intellectual Property, holds inventory or receivables, books revenue, or has more than ten (10) employees.

 

Section 4.20 Perfection of Security Interests in the Collateral. The Collateral Documents, once executed and delivered by the parties thereto, create valid security interests in, and Liens on, the Collateral purported to be covered thereby to the extent such security interests may be created pursuant to Article 9 of the UCC, which security interests and Liens will be, upon the timely and proper filings, deliveries, notations and other actions contemplated in the Collateral Documents, perfected security interests and Liens (to the extent that such security interests and Liens can be perfected by such filings, deliveries, notations and other actions), prior to all other Liens other than Permitted Liens.

 

Section 4.21 Sufficiency of Collateral. The Collateral comprises all material rights and assets relating to the Products, now owned or hereafter acquired, that is owned or controlled by the Company.

 

Section 4.22 Disclosure. The Company has disclosed to the Investor all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether written or oral) by or on behalf of the Company or its Subsidiaries to the Investor in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Transaction Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that, with respect to financial projections, estimates, budgets or other forward-looking information, the Company represents, and represents on behalf of the Company Parties, only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time such information was prepared (it being understood that such information is as to future events and is not to be viewed as facts, is subject to significant uncertainties and contingencies, many of which are beyond the control of the Company and its Subsidiaries, that no assurance can be given that any particular projection, estimate, budget or forecast will be realized and that actual results during the period or periods covered by any such projections, estimate, budgets or forecasts may differ significantly from the projected results and such differences may be material).

 

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Section 4.23 Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act.

 

(a) Sanctions Concerns. No Company nor any Subsidiary, nor, to the Knowledge of the Company, any director, officer, employee, agent, Parent, Subsidiary of Parent, or representative thereof, is an individual or entity that is, or is owned or controlled by, any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.

 

(b) Anti-Corruption Laws. Neither the Company nor, to the Knowledge of the Company, any of the Company’s directors, officers, employees or agents have, directly or indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act (the “FCPA”)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company, the Parent or any of their Subsidiaries in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor, to the Knowledge of the Company, any of its directors, officers, employees or agents have made or authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any Law, rule or regulation. The Company further represents that it has maintained, and has caused each of the Parent, each Subsidiary, and each Subsidiary of the Parent to maintain, systems of internal controls (including accounting systems, purchasing systems and billing systems) to ensure compliance with all Anti-Corruption Laws. The Company and its Subsidiaries have conducted their business in compliance with all Anti-Corruption Laws, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

 

(c) PATRIOT Act. To the extent applicable, the Company and each Subsidiary is in compliance, with the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time.

 

Section 4.24 Data Security; Data Privacy.

 

(a) The Company has not experienced any material breach of security of unauthorized access by third parties of any Personal Information in its possession, custody, or control.

 

(b) In connection with its collection, storage, transfer (including, without limitation, any transfer across national borders) and/or use of any personally identifiable information from any individuals, including, without limitation, any customers, prospective customers employees and/or other Third Parties (collectively “Personal Information”), the Company is and has been, to the Knowledge of Company, in compliance in all material respects with all Applicable Laws in all relevant jurisdictions, including (if applicable) the General Data Protection Regulation, the Company’s privacy policies and the requirements of any contracts or codes of conduct to which the Company is a party, except for any such event that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Company has commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Personal Information collected by it or on its behalf from and against unauthorized access, use and/or disclosure. The Company is and has been, to the Knowledge of the Company, in compliance in all material respects with all Laws relating to data loss, theft and breach of security notification obligations, except for any such event that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 4.25 Compliance.

 

(a) (i) The Company and its Subsidiaries possess all Permits, including Regulatory Approvals from the FDA and other Governmental Authorities required for the conduct of their business as currently conducted, except where the failure to so possess could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and all such Permits are in full force and effect, except where the failure to be in full force and effect could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;

 

(ii) Except as disclosed on Schedule 4.25(a)(ii), the Company and its Subsidiaries have not received any written communication from any Governmental Authority regarding any failure to materially comply with any Laws, including any terms or requirements of any Regulatory Approval and, to the Knowledge of the Company, there are no facts or circumstances that are reasonably likely to give rise to any revocation, withdrawal, suspension, cancellation, material limitation, termination or adverse modification of any Regulatory Approval, in each case, except for any such event that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect;

 

(iii) None of the officers, directors, employees or, to the Knowledge of the Company, Parent, any Subsidiary of the Parent or the Company, or any agent or consultant involved in any Regulatory Approval or filings associated therewith, has been convicted of any crime or engaged in any conduct for which debarment is authorized by 21 U.S.C. Section 335a nor, to the Knowledge of the Company, are any debarment proceedings or investigations pending or threatened against the Company or any Subsidiary or any of their respective officers, employees or agents;

 

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(iv) None of the officers or directors, or, to the Knowledge of the Company, employees of the Company, the Parent, or any Subsidiary of the Parent or the Company, or any agent or consultant has (A) made an untrue statement of material fact or fraudulent statement to any Regulatory Agency or failed to disclose a material fact required to be disclosed to a Regulatory Agency; or (B) committed an act, made a statement, or failed to make a statement that would provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Regulation 46191 (September 10, 1991);

 

(v) All applications, notifications, submissions, information, claims, reports and statistics and other data and conclusions derived therefrom, utilized as the basis for or submitted in connection with any and all requests for a Regulatory Approval from the FDA or other Governmental Authority relating to the Company or any Subsidiary, their business operations and the Products, when submitted to the FDA or other Governmental Authority were true, complete and correct in all material respects as of the date of submission or any required updates, changes, corrections or modifications to such applications, submissions, information and data have been submitted to the FDA or other Governmental Authority;

 

(vi) All preclinical studies and clinical trials conducted by or on behalf of the Company and its Subsidiaries that have been submitted to any Governmental Authority, including the FDA and its counterparts worldwide, in connection with any request for a Regulatory Approval, are being or have been conducted in compliance in all material respects with the required experimental protocols and Applicable Laws;

 

(vii) Since January 1, 2021, all Products have been manufactured, transported, stored and handled in all material respects in accordance with current good manufacturing practices applicable from time to time and Applicable Laws;

 

(viii) Neither the Company, the Parent, nor any Subsidiary of the Company or the Parent has received any written notice that any Governmental Authority, including without limitation the FDA, the Office of the Inspector General of HHS or the United States Department of Justice, has commenced or, to the Knowledge of the Company, threatened to initiate any action against the Company, the Parent, or a Subsidiary of the Company or the Parent, any action to enjoin the Company, the Parent, or a Subsidiary of the Company or the Parent, their officers, directors, employees, and agents, from conducting its business at any facility owned or used by it or for any material civil penalty, injunction, seizure or criminal action that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;

 

(ix) Neither the Company, the Parent, nor any Subsidiary of the Company or the Parent has received from the FDA, at any time since January 1, 2021, a Warning Letter, Form FDA 483, “Untitled Letter,” or similar written correspondence or notice alleging violations of Laws and regulations enforced by the FDA, or any comparable correspondence from any other Governmental Authority with regard to any Products or the manufacture, processing, packaging or holding thereof, the subject of which communication is unresolved and if determined adversely to the Company, the Parent, or such Subsidiary could reasonably be expected to be material to such entity;

 

(x) Since January 1, 2021, (A) there have been no Safety Notices, (B) to the Knowledge of the Company, there are no unresolved material product complaints with respect to any Products, in each case, which could reasonably be expected to be material to the Company, and (C) to the Knowledge of the Company, there are no facts or circumstance that (with or without notice or lapse of time, or both) could, individually or in the aggregate, reasonably be expected to result in (1) a material Safety Notice with respect to any Products, or (2) a termination or suspension of marketing of any Products (if approved);

 

(xi) Except as disclosed on Schedule 4.25(a)(xi), since commercial launch of the Products, to the Knowledge of the Company there has been no instance of death associated with any of the Products; and

 

(xii) Except as disclosed on Schedule 4.25(a)(xii), to the Knowledge of the Company, no facts or circumstances exist that (with or without notice or lapse of time, or both) could, individually or in the aggregate, reasonably be expected to result in the Company’s failure to obtain Marketing Authorization from the FDA for the Gastric Balloon for the treatment of adults with obesity.

 

(b) All of the Products that exist as of the date hereof and as of the Closing Date are listed on Schedule 4.25(b). Since January 1, 2021, the operation of the Business of the Company and its Subsidiaries with respect to the Products, including the manufacture, import, labeling, and distribution of the Products, has been in compliance with all Permits and Applicable Laws, except where a failure to so comply could not reasonably be expected to result in a Material Adverse Effect.

 

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(c) Without limiting the generality of ‎Section 4.25(a)(i) and (ii) above, with respect to any Products being tested or manufactured by the Company and its Subsidiaries, as of the date hereof and as of the Closing Date, to the Knowledge of the Company, neither the Company nor any Subsidiary has received any written notice from any applicable Governmental Authority, including the FDA, that such Governmental Authority is conducting an investigation or review of (A) the Company and its Subsidiaries’ (or any third party contractors therefor) manufacturing facilities and processes for manufacturing such Products or the marketing and sales of such Products, in each case which have identified any material deficiencies or violations of Laws or the Permits related to the manufacture, marketing and/or sales of such Products that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or (B) any such Regulatory Approval that would result in a revocation or withdrawal of such Regulatory Approval, nor has any such Governmental Authority issued any order or recommendation stating that the development, testing, manufacturing, marketing or sales of such Products by the Company and its Subsidiaries should cease or that such Products should be withdrawn from the marketplace; and

 

(d) Since January 1, 2021, neither the Company nor any Subsidiary of the Company has experienced any significant failures in the manufacturing of any Products for commercial sale that has had or could reasonably be expected to result in, if such failure occurred again, a Material Adverse Effect.

 

Section 4.26 Labor Matters. There are no existing or, to the Knowledge of the Company, threatened strikes, lockouts or other labor Disputes involving the Company or any Subsidiary that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. Except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, hours worked by and payments of compensation made by the Company and its Subsidiaries to their respective employees are not in violation of the Fair Labor Standards Act or any other Applicable Law, rule or regulation dealing with such matters.

 

Section 4.27 Taxes. The Company and each of its Subsidiaries has (A) filed all income and other material Tax returns and reports required by to have been filed by it (including in its capacity as a withholding agent), (B) paid all income and other material Taxes required to be paid by it (including in its capacity as a withholding agent), and (C) provided adequate accruals, charges and reserves in accordance with GAAP in their applicable financial statements in respect of all Taxes not yet due and payable, except, in each case, any such Taxes that are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.

 

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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE Investor

 

The Investor hereby represents and warrants separately (and not jointly) to the Company as of the Effective Date and the date of each Closing as follows:

 

Section 5.1 Organization. The Investor is an exempted company or an investment company limited by shares, as applicable, duly organized, validly existing and in good standing under the Laws of its state of formation and has all powers and authority, and all licenses, permits, franchises, authorizations, consents and approvals of all Governmental Authorities, required to own its property and conduct its business as now conducted.

 

Section 5.2 No Conflicts. None of the execution and delivery by the Investor of any of the Transaction Documents to which it is party, the performance by it of the obligations contemplated hereby or thereby or the consummation of the transactions contemplated hereby or thereby will contravene, conflict with, result in a breach, violation, cancellation or termination of, constitute a default (with or without notice or lapse of time, or both) under, require prepayment under, give any Person the right to exercise any remedy (including termination, cancellation or acceleration) or obtain any additional rights under, or accelerate the maturity or performance of or payment under, in any respect, (i) any Applicable Law or any Judgment, permit or license of any Governmental Authority to which the Investor or any of its assets or properties may be subject or bound, (ii) any term or provision of any contract, agreement, indenture, lease, license, deed, commitment, obligation or instrument to which the Investor is a party or by which the Investor or any of its assets or properties is bound or committed or (iii) any term or provision of any of the organizational documents of the Investor, except in the case of clause (i) where any such event could not reasonably be expected to result in a material adverse effect on the ability of the Investor to consummate the transactions contemplated by the Transaction Documents.

 

Section 5.3 Authorization. The Investor has all powers and authority to execute and deliver, and perform its obligations under, the Transaction Documents to which it is party and to consummate the transactions contemplated hereby and thereby. The execution and delivery of each of the Transaction Documents to which the Investor is party, and the performance by it of its obligations hereunder and thereunder, have been duly authorized by it. Each of the Transaction Documents to which the Investor is party has been duly executed and delivered by it. Each of the Transaction Documents to which the Investor is party constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar Applicable Laws affecting creditors’ rights generally, general equitable principles and principles of public policy.

 

Section 5.4 Governmental and Third Party Authorizations. The execution and delivery by the Investor of the Transaction Documents to which it is party, the performance by it of its obligations hereunder and thereunder and the consummation of any of the transactions contemplated hereunder and thereunder do not require any consent, approval, license, order, authorization or declaration from, notice to, action or registration by or filing with any Governmental Authority or any other Person, except as described in Section ‎4.5.

 

Section 5.5 No Litigation. There is no action, suit, arbitration proceeding, claim, citation, summons, subpoena, investigation or other proceeding (whether civil, criminal, administrative, regulatory, investigative or informal and including by or before a Governmental Authority) pending or, to the knowledge of the Investor, threatened by or against the Investor, at law or in equity, that challenges or seeks to prevent or delay or which, if adversely determined, would prevent or delay the consummation of any of the transactions contemplated by any of the Transaction Documents to which it is party.

 

Section 5.6 No Brokers’ Fees. The Investor has not taken any action that would entitle any person or entity to any commission or broker’s fee in connection with the transactions contemplated by this Agreement.

 

Section 5.7 Funds Available. As of the date hereof, the Investor has sufficient funds on hand or under commitment to satisfy its obligations to pay the Investment Amount due and payable on the Closing Date. The Investor acknowledges and agrees that its obligations under this Agreement are not contingent on obtaining financing.

 

Section 5.8 Access to Information. The Investor acknowledges that it has (a) reviewed such documents and information relating to the Revenue Interests, the other Collateral and the Products and (b) had the opportunity to ask such questions of, and to receive answers from, representatives of the Company, in each case, as it deemed necessary to make an informed decision to purchase, acquire and accept the Revenue Interests in accordance with the terms of this Agreement. The Investor has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the risks and merits of purchasing, acquiring and accepting the Revenue Interests in accordance with the terms of this Agreement.

 

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ARTICLE VI

 

Affirmative COVENANTS

 

The Parties hereto covenant and agree as follows:

 

Section 6.1 Collateral Matters; Guarantors.

 

(a) On or prior to the Closing Date, the Company shall, and will cause each of the Parent and the other Guarantors (including Allurion France SAS and Allurion Australia Pty Ltd.) to, enter into the Security Agreement (and become a party to the Guaranty as Guarantor), pursuant to which the Company and the Guarantors shall grant to the Investor, (i) a continuing security interest of second priority in all of their respective right, title and interest in, to and under the Collateral whether now or hereafter existing and subject to the Intercreditor Agreement, and any and all “proceeds” thereof (as such term is defined in the UCC), in each case, as collateral security for the prompt and complete payment and performance when due of the Secured Obligations (as defined in the Security Agreement). In addition, on or prior to the Closing Date, the Parent and each other Guarantor shall enter into the Guaranty, pursuant to which each Guarantor shall guarantee the prompt performance of the Obligations. The Company shall cause any Subsidiary (other than any Excluded Subsidiary) that may acquire or own any material portion of the Collateral after the Closing Date to enter into a Joinder Agreement to become a party to the Guaranty as Guarantor and to the Security Agreement as Grantor within thirty (30) days thereof (or sixty (60) days thereof solely in the case such Subsidiary is not a “United States person” (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time)).

 

(b) Subject to the occurrence of the Closing, the Company authorizes and consents to the Investor filing, including with the Secretary of State of the State of Delaware and any other applicable jurisdiction, one or more financing statements (and continuation statements with respect to such financing statements when applicable), or other similar instruments, registrations, or documents, in each case suitable for filing under the UCC (or equivalent law) of all jurisdictions as may be necessary or, in the opinion of the Investor, desirable to evidence and to perfect and maintain the perfection of, the grant and pledge of the security interests in the Collateral granted by each Grantor to the Investor pursuant to the Security Agreement; provided that the Investor will provide the Company with a reasonable opportunity to review any such financing statements (or similar documents) prior to filing and the collateral identified in any such financing shall be limited to a legally sufficient description of the “Collateral”, as defined herein. For greater certainty, the Investor will not file this Agreement in connection with the filing of any such financing statements (or similar documents) but may file a summary or memorandum of this Agreement if required under Applicable Laws providing for such filing. For sake of clarification, the foregoing statements in this ‎Section 6.1 shall not bind either Party regarding the reporting of the transactions contemplated hereby for GAAP or SEC reporting purposes.

 

Section 6.2 Update Meetings. During the Payment Term, but subject to ‎ARTICLE IX, the Investor shall be entitled to a quarterly update call or meeting (at the Investor’s election, in person, via teleconference or videoconference or at a location reasonably designated by the Company) to discuss:

 

(a) the reports delivered by the Company pursuant to Section 3.3;

 

(b) an annual business plan and budget of the Company and its Subsidiaries containing, among other things, quarterly revenue and cash flow projections for the next year;

 

(c) copies of any detailed audit reports, management letters or recommendations submitted to the Board of Directors (or the audit committee of the Board of Directors) of the Company by its independent auditor in connection with the accounts or books of the Company or any Subsidiary, or any audit of any of them;

 

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(d) copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other material inquiry by such agency regarding financial or other operational results of any Guarantor or any Company Party and copies of any material written correspondence or any other material written communication from the FDA or any other regulatory body;

 

(e) the progress of sales and product development and marketing efforts made by the Company pursuant to the Product Plan;

 

(f) the status and the historical and potential performance of the Products;

 

(g) any material regulatory or Patent developments; or

 

(h) such other matters that the Investor reasonably deems appropriate.

 

Any information disclosed by either Party during such update meetings or calls or provided to the Investor pursuant to its request shall be considered “Confidential Information” of the disclosing Party subject to the terms of ‎ARTICLE IX. Notwithstanding the foregoing, after the occurrence and during the continuance of a Default or an Event of Default, the Investor shall have the right, as often, at such times and with such prior notice as the Investor shall determine in its reasonable discretion, to have such update meetings at the Company’s headquarters or inspect any records and operations of the Company and its Subsidiaries.

 

Section 6.3 Notices.

 

(a) To the extent permitted by Applicable Law, promptly after receipt by the Company of notice of any material action, suit, claim, demand, Dispute, investigation, arbitration or other legal proceeding (commenced or threatened) involving or related to the Products, the transactions contemplated by any Transaction Document, or to the Revenue Interests, the Company shall, subject to any confidentiality obligations to any Third Party, (i) inform the Investor in writing of the receipt of such notice and the substance thereof and (ii) if such notice is in writing, furnish the Investor with a copy of such notice and any related materials with respect thereto reasonably requested by the Investor, and if such notice is not in writing, furnish to the Investor a written summary describing in reasonable detail the substance thereof.

 

(b) To the extent permitted by Applicable Law, promptly following receipt by the Company of any written notice, claim or demand challenging the legality, validity, enforceability or ownership of any of the IP Rights included in the Collateral or that are material assets or rights related to the Product, or pursuant to which any Third Party commences or threatens any action, suit or other proceeding against the Company, the Parent, or any of their respective Subsidiaries and relating to the Products, the Company shall, subject to any confidentiality obligation to any Third Party, (i) inform the Investor in writing of such receipt and (ii) furnish the Investor with a copy of such notice, claim or demand, or if such notice is not in writing, furnish to the Investor a written summary describing in reasonable detail the contents thereof.

 

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(c) The Company shall promptly (and in any event within ten (10) Business Days) provide the Investor with copies of any material information, reports and notices if the contents of such information, report or notice could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(d) The Company shall provide the Investor with prompt written notice after the Company has Knowledge of any of the following: (i) the occurrence of a Bankruptcy Event in respect of the Company or any Material Contract Counterparty to any Product Material Contract (or to the extent it could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, any Material Contract Counterparty to any other Material Contract); (ii) any material breach or default (in each case, with or without notice or lapse of time, or both) by the Company of or under any covenant, agreement or other provision of any Transaction Document; (iii) any representation or warranty made by the Company in any of the Transaction Documents or in any certificate delivered to the Investor pursuant to this Agreement shall prove to be untrue, inaccurate or incomplete in any material respect on the date as of which made; or (iv) any change, effect, event, occurrence, state of facts, development or condition with respect to the assets of the Company and its Subsidiaries, taken as a whole, that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(e) The Company shall promptly notify the Investor of the occurrence of a Change of Control.

 

(f) The Company shall notify the Investor in writing not less than five (5) Business Days prior to any change in, or amendment or alteration of, any Company Party’s (i) legal name, (ii) form of legal entity or (iii) jurisdiction of organization.

 

(g) The Company shall notify the Investor of any ERISA Event promptly (and in any event, within ten (10) Business Days) following the Company becoming aware of such ERISA Event.

 

(h) The Company shall promptly (and in any event, within ten (10) days) notify the Investor of (i) the termination of any Product Material Contract other than upon its scheduled termination date; (ii) the receipt by any Company Party or any of their respective Subsidiaries from a counterparty asserting a default by the Company or any of its Affiliates under any Material Contract where such alleged default, if accurate, would permit such counterparty to terminate such Material Contract; (iii) the entering into of any new Product Material Contract by a Company Party or any of their respective Subsidiaries; or (iv) any material amendment to a Product Material Contract in any manner adverse to the Investor.

 

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(i) The Company shall promptly notify the Investor of the occurrence of a Default or Event of Default.

 

(j) The Company shall promptly notify the Investor of the occurrence of any event with respect to the assets of the Company or any Subsidiary of the Company that could reasonably be expected to result in a Material Adverse Effect.

 

Each notice pursuant to clauses (a) through (j) of this ‎Section 6.3 shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the applicable Company Party has taken and proposes to take with respect thereto. Such statement shall set forth the actions the applicable Company Party has taken and proposes to take with respect thereto. Each notice pursuant to ‎Section 6.3(h) or ‎Section 6.3(i) shall describe with particularity any and all provisions of this Agreement and any other Transaction Document that have been breached.

 

Section 6.4 Public Announcement.

 

(a) As soon as reasonably practicable following the date hereof, one or both of the Parties may issue a mutually agreed to press release substantially in the applicable form attached hereto as Exhibit A. Except as required by Applicable Law (including disclosure requirements of the SEC, the Nasdaq Stock Market or any other stock exchange on which securities issued by the Company, the Parent, or any of their respective Subsidiaries are traded) or for statements that are materially consistent with all or any portion of a previously approved public disclosure, neither Party shall make any other public announcement concerning this Agreement or the subject matter hereof without the prior written consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed. In the event of a required public announcement, to the extent practicable under the circumstances, the Party making such announcement shall provide the other Party (which in the case of the Investor, shall be the Investor) with a copy of the proposed text of such announcement sufficiently in advance of the scheduled release to afford such other Party a reasonable opportunity to review and comment upon the proposed text.

 

(b) The Parties shall coordinate in advance with each other in connection with the filing of this Agreement (including proposed redaction of certain provisions of this Agreement) with the SEC, the Nasdaq Stock Market or any other stock exchange or Governmental Authority on which securities issued by the Company, the Parent, or any of their respective Subsidiaries are traded, and each Party shall use reasonable efforts to seek confidential treatment for the terms of this Agreement proposed to be redacted, if any; provided that each Party shall ultimately retain control over what information such Party will disclose to the SEC, the Nasdaq Global Select Market or any other stock exchange or Governmental Authority, as the case may be, and provided further that the Parties shall use their reasonable efforts to file redacted versions with any Governmental Authorities which are consistent with redacted versions previously filed with any other Governmental Authorities. Other than such obligation, neither Party (nor its Affiliates) shall be obligated to consult with or obtain approval from the other Party with respect to any filings with the SEC, the Nasdaq Stock Market or any other stock exchange or Governmental Authority. For clarity, once a public announcement or other disclosure is made by a Party in accordance with this ‎Section 6.4, then no further consent or compliance with this ‎Section 6.4 shall be required for any substantially similar disclosure thereafter.

 

Section 6.5 Further Assurances.

 

(a) During the Payment Term, the Company shall promptly, upon the reasonable request of the Investor, at the Company’s sole cost and expense, (i) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Transaction Documents or otherwise deemed by the Investor reasonably necessary for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Transaction Document, or obtain any consents or waivers as may be necessary in connection therewith; (ii) deliver or cause to be delivered to the Investor from time to time such other documentation, consents, authorizations, approvals and orders in form and substance reasonably satisfactory to the Investor as the Investor shall reasonably deem necessary to perfect or maintain the Liens on the Collateral pursuant to the Transaction Documents; and (iii) upon the exercise by the Investor of any power, right, privilege or remedy pursuant to any Transaction Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, execute and deliver all applications, certifications, instruments and other documents and papers that the Investor may reasonably require. In addition, during the Payment Term, the Company shall promptly, at its sole cost and expense, execute and deliver to the Investor such further instruments and documents, and take such further action as the Investor may, at any time and from time to time, reasonably request in order to carry out the intent and purpose of this Agreement and the other Transaction Documents and to establish and protect the rights, interests and remedies created, or intended to be created, in favor of the Investor hereby and thereby.

 

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(b) The Company and the Investor shall cooperate and provide assistance as reasonably requested by each of the Parties hereto, at the expense of the requesting Party (except as otherwise set forth herein), in connection with any litigation, arbitration, investigation or other proceeding (whether threatened, existing, initiated or contemplated prior to, on or after the date hereof) to which the requesting party, any of its Affiliates or controlling persons or any of their respective officers, directors, equityholders, controlling persons, managers, agents or employees is or may become a party or is or may become otherwise directly or indirectly affected or as to which any such Persons have a direct or indirect interest, in each case relating to any Transaction Document, the transactions contemplated herein or therein or the Revenue Interests, but in all cases excluding any litigation brought by the Company (for itself or on behalf of any Company Indemnified Party) against the Investor or brought by the Investor or the Investor (for itself or on behalf of any Investor Indemnified Party) against the Company.

 

(c) Each Party shall comply with all Applicable Laws with respect to the Transaction Documents and the Revenue Interests except where any non-compliance could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 6.6 IP Rights. The Company and its Subsidiaries shall use Commercially Reasonable and Diligent Efforts in each of the Key Countries to: (a) take any and all actions, and prepare, execute, deliver and file any and all agreements, documents and instruments, that are reasonably necessary or desirable to preserve diligently and maintain the IP Rights related to any Products in such countries, including payment of maintenance fees or annuities, at the sole expense of the Company, (b) diligently defend (and enforce) the IP Rights related to any Products in such countries against infringement or interference by any other Person, and against any claims of invalidity or unenforceability (including by bringing any legal action for infringement or defending any counterclaim of invalidity or action of a Third Party for declaratory judgment of non-infringement or non-interference), (c) diligently defend against any claim or action in such countries by any other Person that the manufacture, use, marketing, sale, offer for sale, importation or distribution of the Products as currently contemplated infringes on any patent or other intellectual property rights of any other Person or constitutes misappropriation of any other Person’s trade secrets or other intellectual property rights, and (d) when available in respect of any Product and where applicable, apply for regulatory or data exclusivity where available in countries in which sales of such Product occurs. The Company shall not exercise and enforce its applicable rights in any manner that would result in a breach of this Agreement.

 

Section 6.7 Existence. The Company shall (a) preserve and maintain its existence, other than the consummation of the Second Merger (as defined in the Business Combination Agreement), (b) preserve and maintain each of its rights, franchises and privileges unless failure to do any of the foregoing could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (c) qualify and remain qualified in good standing in each jurisdiction where the failure to preserve and maintain such qualification could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, including appointing and employing such agents or attorneys in each jurisdiction where it shall be necessary to take action under this Agreement, and (d) comply in all material respects with its organizational documents.

 

Section 6.8 Commercialization of the Products.

 

(a) The Company and its Subsidiaries shall use Commercially Reasonable and Diligent Efforts to prepare, execute, deliver and file any and all agreements, documents or instruments that are necessary or desirable to secure and maintain Marketing Authorization in each of the Key Countries for the Products. The Company shall not withdraw or abandon, or fail to take any action necessary to prevent the withdrawal or abandonment of, Marketing Authorization in each of the Key Countries for the Products. The Company shall use Commercially Reasonable and Diligent Efforts, itself or through one or more Affiliates or Permitted Licensees, to Commercialize the Products in each of the Key Countries in which it has a Marketing Authorization in accordance with the Product Plan.

 

(b) The Company shall, and shall cause the Parent and each of their respective Subsidiaries to, use Commercially Reasonable and Diligent Efforts to comply with all material terms and conditions of and fulfill all material obligations under each Product Material Contract (including, without limitation, each License Agreement) to which any of them is party. Upon the occurrence of a breach of any such Product Material Contract by any other party thereto, which could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Company shall use Commercially Reasonable and Diligent Efforts to seek to enforce all of its (or its Affiliates’) rights and remedies thereunder.

 

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Section 6.9 Financial Statements.

 

(a) During the Payment Term, to the extent not already filed publicly with the SEC, the Company shall deliver to the Investor, in form and detail reasonably satisfactory to the Investor as soon as available, and in any event within ninety (90) days after the end of each fiscal year of the Parent, (x) a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any qualification or exception as to the scope of such audit (except for a qualification or an exception to the extent related to the maturity or refinancing of borrowings under Permitted Debt or this Agreement); provided, that to the extent the components of such financial statements relating to a prior fiscal period are separately audited by different independent public accounting firms, the audit report of any such accounting firm may contain a qualification or exception as to scope of such financial statements as they relate to such components and (y) to the extent there are material differences between the consolidated financial condition and results of operation of the Parent and its Subsidiaries, on the one hand, and the Company and its Subsidiaries, on the other hand, an unaudited reconciliation prepared by the Company showing the differences in such results for such period; and

 

(b) During the Payment Term, to the extent not already filed publicly with the SEC, the Company shall deliver to the Investor, as soon as available, and in any event within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Company (or, if earlier, when required to be filed with the SEC) (the “Statement Period”), (x) a consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Parent’s and the Company’s fiscal year then ended, setting forth, in each case in comparative form, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail (the “Quarterly Statements”) and (y) to the extent there are material differences between the consolidated financial condition and results of operation of the Parent and its Subsidiaries, on the one hand, and the Company and its Subsidiaries, on the other hand, an unaudited reconciliation prepared by the Company showing the differences in such results for such period.

 

Section 6.10 Payment of Obligations. Company will and will cause each Company Party shall pay and discharge all of their respective obligations and liabilities (a) prior to the date on which penalties attach thereto, all federal and state and other Taxes imposed upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company Party, (b) as the same shall become due and payable, all lawful claims which, if unpaid, would by Law become a Lien upon any Collateral, and (c) prior to the date on which such Indebtedness shall become delinquent or in default, all material Indebtedness, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

 

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Section 6.11 Maintenance of Properties. Each of the Company and its Subsidiaries shall maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear and casualty and condemnation events excepted) except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and shall make all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

 

Section 6.12 Maintenance of Insurance. Each of the Company and its Subsidiaries shall maintain with financially sound and reputable insurance companies that are not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.

 

Section 6.13 Books and Records. Each of the Company and its Subsidiaries shall maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Company Party or such Subsidiary, as the case may be. Each of the Company and its Subsidiaries shall maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Company Party or such Subsidiary, as the case may be.

 

Section 6.14 Use of Proceeds. The Company and its Subsidiaries, taken as a whole, shall use substantially all of the Investment Amount to support the development and Commercialization of Products, including the Commercialization of Products in accordance with the Product Plan. In no event, however, shall the Investment Amount be used to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Investor or otherwise) of Sanctions or otherwise in contravention of any Law or of any Transaction Document.

 

Section 6.15 ERISA Compliance. Each of the Company and its Subsidiaries shall do each of the following: (a) maintain each Plan in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state Law, (b) cause each Pension Plan that is qualified under Section 401(a) of the Internal Revenue Code to maintain such qualification, and (c) make all contributions required to be made by the Company and its Subsidiaries to any Pension Plan subject to Section 412 or Section 430 of the Internal Revenue Code, in each case, except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 6.16 Compliance with Material Contracts. Each of the Company and its Subsidiaries shall comply in all respects with each Contractual Obligation of such Person, except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 6.17 Compliance with Laws. The Company shall maintain, and shall cause its Subsidiaries to maintain, compliance in all material respects with all applicable laws, rules or regulations (including any law, rule or regulation with respect to the making or brokering of loans or financial accommodations), and shall, or cause its Subsidiaries to, obtain and maintain all required governmental authorizations, approvals, licenses, franchises, permits or registrations reasonably necessary in connection with the conduct of the Company’s and its Subsidiaries’ respective businesses.

 

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Section 6.18 Anti-Corruption Laws; Anti-Terrorism Laws.

 

(a) Neither the Company, any of its Subsidiaries, nor any of their respective directors, officers, employees or agents shall, directly or indirectly, engage in any activity which would constitute a violation of the FCPA make, offer, promise or authorize any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the FCPA), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any of its Affiliate in obtaining or retaining business for or with, or directing business to, any person.

 

(b) Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries permit any Affiliate controlled by the Company to, directly or indirectly, knowingly enter into any documents, instruments, agreements or contracts with any Person who is subject to Sanctions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries, permit any Affiliate controlled by the Company to, directly or indirectly, (i) conduct any business or engage in any transaction or dealing with any Person who is subject to Sanctions, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Person who is subject to Sanctions, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224 or any similar executive order or other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.

 

Section 6.19 Data Privacy. In connection with its collection, storage, transfer (including, without limitation, any transfer across national borders) and/or use of any Personal Information, the Company shall, and shall cause its Subsidiaries to, maintain compliance in all material respects with all Applicable Laws in all relevant jurisdictions, including the General Data Protection Regulation, the Company’s and its Subsidiaries’ privacy policies and the requirements of any contracts or codes of conduct to which the Company’s or any of its Subsidiaries is a party, except for any such events that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Company shall maintain commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Personal Information collected by it or on its behalf from and against unauthorized access, use and/or disclosure. The Company shall, and shall cause its Subsidiaries to, maintain compliance in all material respects with all Applicable Laws relating to data loss, theft and breach of security notification obligations, except for any such event that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 6.20 Products. In connection with the development, testing, manufacture, marketing or sale of each and any Product by the Company or any Subsidiary, the Company or such Subsidiary shall comply in all material respects with all Permits.

 

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Section 6.21 Tax.

 

(a) The Parties agree that for U.S. federal and applicable state and local income Tax purposes, the transactions contemplated by this Agreement are intended to constitute a debt instrument that is, in part, subject to U.S. Treasury Regulations under Section 1.1275-4(b) governing contingent payment debt instruments.

 

(b) Within ninety (90) days after the date of this Agreement, the Company shall prepare and deliver to the Investor a draft determination of the comparable yield and a projected payment schedule under Section 1.1275-4(b) (the “Initial Draft Comparable Yield”) and the amount of interest payments qualifying for the “portfolio interest” exemption under Sections 871, 881 and 1441(c)(9) of the Code to be set forth on Schedule 6.21(e), which shall be consistent with the Methodology defined in paragraph (c) below (the “Initial Draft Schedule 6.21(e)”). The Company shall use reasonable best efforts, following the date of this Agreement, to notify the Investor of any material developments regarding its preparation, delivery and determination of the Initial Draft Comparable Yield. If the Investor disagrees with the Initial Draft Comparable Yield or Initial Draft Schedule 6.21(e), the Investor may, within thirty (30) days after delivery of the Initial Draft Comparable Yield and Initial Draft Schedule 6.21(e), deliver a notice (the “Objection Notice”) to the Company to such effect, specifying those items as to which the Investor disagrees and setting forth the Investor’s proposed determination of the comparable yield and projected payment schedule and amounts to be set forth on Schedule 6.21(e), as applicable. If the Objection Notice is duly delivered, the Investor and Company shall, during the twenty (20) days following such delivery, negotiate in good faith to reach agreement on the disputed items in order to determine the comparable yield and projected payment schedule and amounts to be set forth on Schedule 6.21(e). In the event that the Company and Investor are unable to reach agreement with respect to any disputed items within a period of twenty (20) days after the Company’s receipt of such Objection Notice from the Investor, all such disputed items shall be referred to a nationally recognized accounting firm mutually agreed upon by the Company and Investor (the “Arbiter”) for final resolution, which resolution shall not be inconsistent with the Methodology. The determination of the Arbiter shall be final and binding upon the Parties and the fees, costs and expenses of the Arbiter shall be borne equally by the Company and Investor. The Initial Draft Comparable Yield, as prepared by the Company if no Objection Notice has been given, as adjusted pursuant to any agreement between the Company and the Investor, or as determined by the Arbiter, shall be the final determination of the comparable yield and a projected payment schedule (as applicable, the “Final Comparable Yield”). The Initial Draft Schedule 6.21(e), as prepared by the Company if no Objection Notice has been given, as adjusted pursuant to any agreement between the Company and the Investor, or as determined by the Arbiter, shall be the final determination of the amounts to be set forth on Schedule 6.21(e) (as applicable, the “Final Schedule 6.21(e)”). The Company shall provide the Investor with prompt written notice of any adjustments to the Final Comparable Yield that are required (if any) pursuant to Treasury Regulation 1.1275-4(b)(6) to reflect changes to the Company’s determination of the comparable yield and the projected payment schedule.

 

(c) The Parties intend that the provisions of Treasury Regulation 1.1275-2(a)(1) apply, subject to the exceptions in Treasury Regulation 1.1275-2(a)(2), to treat any payments on the debt instrument as first, a payment of any accrued and any unpaid original issue discount at such time and second, a payment of principal (including for purposes of the rules applicable to “applicable high yield discount obligations”). The Parties shall treat any payments on the debt instrument, assuming for this purpose no Prepayment Amount has been paid prior to December 31, 2025, as (i) first, a payment of any accrued and unpaid original issue discount qualifying for the “portfolio interest” exemption under Sections 871, 881 and 1441(c)(9) of the Code (which in no event shall be less than the amount of accrued and unpaid original issue discount that would have accrued on the debt instrument under Section 1272 of the Code and the Treasury Regulations thereunder had it instead provided for two payments: (x) a payment in an amount equal to the Investment Amount on December 31, 2027 and (y) a payment in an amount equal to (I) two hundred and forty percent (240%) of the Investment Amount less (II) the amount of the payment described in clause (x), paid on the Legal Maturity Date in complete satisfaction of the Obligations); (ii) thereafter, a payment of any accrued and unpaid original issue discount or interest other than amounts reflected under (i) above; and (iii) thereafter, a repayment of the outstanding principal amount of the debt instrument (such treatment, collectively, the “Methodology”). Notwithstanding the Methodology and Final Schedule 6.21(e), in the event a payment of the Prepayment Amount is made pursuant to ‎Section 3.1(e), or a payment is made pursuant to ‎Section 3.1(c) or ‎Section 11.1‎, the Parties agree to treat the portion of such payment in excess of the Investment Amount as qualifying for the “portfolio interest” exemption under Sections 871, 881 and 1441(c)(9). The Parties agree not to take and to not cause or permit their Affiliates to take, any position that is inconsistent with this ‎‎Section 6.21(c) on any Tax return or for any other Tax purpose unless otherwise required by Applicable Law.

 

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(d) On or prior to the Closing Date, the Investor shall provide the Company with executed copies of (i) an IRS Form W-8IMY from the Investor, accompanied by an IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, or IRS Form W-9 from each beneficial owner, as applicable and (ii) a certificate to the effect that (A) the Investor is the sole record owner of the Investment Amount and any amounts or other consideration payable pursuant to the terms of this Agreement, (B) its direct or indirect partners/members are the sole beneficial owners of the Investment Amount and any amounts or other consideration payable pursuant to the terms of this Agreement, and (C) none of the Investor’s direct or indirect partners or members is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code. For the avoidance of doubt, the obligation to provide forms and certificates set forth in this ‎Section 6.21(d) shall also apply to the Investor’s successors or permitted assigns.

 

(e) Unless either (i) required by a change in Applicable Law or (ii) either (A) the Investor (or its successors or permitted assigns) fails to timely provide the forms and certificates described in Section 6.21(d) or (B) any such form or certificate described in Section 6.21(d) subsequently becomes invalid or incorrect (after notice from the Company and a reasonable opportunity to cure), the deduction and withholding for any Taxes with respect to payments by or on account of any obligation of the Company under this Agreement shall be made in accordance with the Methodology, which will be reflected in the Final Schedule 6.21(e) (and, for the avoidance of doubt, no deduction or withholding shall be made with respect to amounts described in Section 6.21(c)(i)) and be consistent with the treatment set forth in the penultimate sentence of Section 6.21(c) (and, for the avoidance of doubt, no deduction or withholding shall be made with respect to amounts described in that sentence). To the extent any Taxes in respect of any amounts payable to the Investor pursuant to this Agreement are deducted and withheld in accordance with the Final Schedule 6.21(e), (i) the Company shall make such withholding and timely pay such amount to the applicable Governmental Authority and (ii) the Company shall use commercially reasonable efforts to provide the Investor with a receipt evidencing such payment or other evidence of such payment reasonably satisfactory to the Investor. If as a result of a change in Applicable Law the Company is required to withhold any Tax in respect of any amounts payable to the Investor pursuant to this Agreement other than as provided in the Final Schedule 6.21(e), the Company shall (x) provide the Investor with prior notice of its intent to withhold, and (y) cooperate to reduce or eliminate any such withholding in advance of such payment. To the extent any such Taxes are nevertheless so deducted and withheld, (I) the Company shall make such withholding and timely pay such amount to the applicable Governmental Authority and (II) the Company shall use commercially reasonable efforts to provide the Investor with a receipt evidencing such payment or other evidence of such payment reasonably satisfactory to the Investor.

 

(f) The Investor (and any Affiliate thereof) agrees to indemnify, defend and hold harmless the Company (and any Affiliate thereof) for any Indemnified Taxes (including any Losses attributable to such Indemnified Taxes) in respect of any failure to deduct or withhold on payments made pursuant to any of the Transaction Documents (other than any penalties arising as a result of the Company’s failure to withhold in accordance with the Final Schedule 6.21(e)).

 

(g) Each Party’s obligations under this ‎‎Section 6.21 shall survive the termination of this Agreement and the repayment, satisfaction or discharge of all obligations under this Agreement.

 

Section 6.22 Convertible Notes. Prior to the Closing, the Company shall ensure that the obligations of the Company to each holder of the Convertible Notes shall have been converted into common Equity Interests of the Company, and the Company shall have no outstanding Indebtedness or other obligations thereunder (other than contingent indemnification obligations for which no claim has been made in writing).

 

Section 6.23 Board Governance. Company will ensure that (a) the Investor shall have the right to designate one director (the “Designated Director”) to the Board of Directors of the Parent, which director shall initially be Nick Lewin, and (b) the Designated Director shall have the right to be a member of any and all committees of the Board of Directors of the Parent. Upon the removal or resignation of the initial Designated Director, Company will ensure that the Investor shall have the right to designate a replacement director until such time as all Obligations have been paid by the Company.

 

Section 6.24 Company Assumption. Prior to or at the Closing, the Company shall ensure that Merger Sub 2 executes and delivers to the Investor a Company Assumption Agreement substantially in the form of Exhibit G hereto.

 

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ARTICLE VII

NEGATIVE COVENANTS

 

During the Payment Term, no Company Party shall, nor shall it permit any Subsidiary to, directly or indirectly:

 

Section 7.1 Liens. Create, incur, assume or suffer to exist any Lien upon any Collateral or any asset that would constitute Collateral if owned by a Company Party, whether now owned or hereafter acquired, other than the Permitted Liens.

 

Section 7.2 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness without the prior written consent of the Investor, except Permitted Debt (provided, that (a) the security interests of the Investor’s pursuant to the Security Agreement shall not be subordinated to any Permitted Debt other than Indebtedness under clause (a) of the definition of “Permitted Debt” and (b) such Permitted Debt shall not be subject to any Lien other than with respect to clause (aa) and (dd) of the definition of “Permitted Lien”).

 

Section 7.3 Dispositions. Make any Disposition (other than, for the avoidance of doubt, Permitted Transfers) unless (i) the consideration paid in connection therewith shall be in an amount not less than the fair market value of the property disposed of, (ii) no Default or Event of Default shall have occurred and be continuing both immediately prior to and after giving effect to such Disposition, (iii) such transaction does not involve the sale or other disposition of a minority Equity Interest in any Subsidiary (other than to another Grantor), and (iv) such transaction does not involve a sale, transfer, license or other disposition of Product assets or rights included in the Collateral or any assets that would constitute Collateral if owned by a Company Party (or, in each case, any IP Rights associated therewith) in any of the Key Countries or any state or political subdivision thereof.

 

Section 7.4 Change in Nature of Business. Engage in any material line of business other than the discovery, development, manufacture or commercialization of medical devices.

 

Section 7.5 Prepayment of Other Indebtedness. Prior to the Minimum Return Date, make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption, cash settlement or acquisition for value (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Indebtedness of the Company or any Subsidiary (other than exchanging any such Indebtedness for capital stock (other than Disqualified Capital Stock) or the proceeds from the sale of capital stock (other than Disqualified Capital Stock)), other than (a) Indebtedness contemplated by clause (a) of the definition of “Permitted Debt”, subject to the limitations under the Intercreditor Agreement, and (b) payments by the Company to the Investor comprising the Prepayment Amount pursuant to ‎Section 3.1(e) and ‎Section 3.1(f).

 

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Section 7.6 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity; Certain Amendments.

 

(a) Other than in connection with the De-SPAC Transaction, amend, modify or change its Organization Documents in a manner materially adverse to the rights or remedies of the Investor under the Transaction Documents.

 

(b) Without providing ten (10) days prior notice to the Investor, change its fiscal year.

 

(c) Other than in connection with the De-SPAC Transaction, without providing ten (10) days prior notice to the Investor, change its name, state of organization or form of organization or its Federal Taxpayer Identification Number or its organizational identification number.

 

(d) Amend, modify or change the Product Plan without the prior written consent of the Investor.

 

Section 7.7 Burdensome Actions.

 

(a) The Company and its Subsidiaries shall not enter into any Contract, or grant any right to any other Person, in any case that would conflict with the Transaction Documents or serve or operate to limit or circumscribe any of the Investor’s rights under the Transaction Documents (or the Investor’s ability to exercise any such rights) or create, incur, assume or suffer to exist any Lien upon any Collateral or any assets that would constitute Collateral if owned by a Company Party (other than Permitted Liens), or agree to do or suffer to exist any of the foregoing. Without limiting the generality of the foregoing, the Company shall not enter into, or permit to exist, any Contractual Obligation that encumbers or restricts the ability of any Company Party to (i) pledge its property pursuant to the Transaction Documents or (ii) perform any of its obligations under the Transaction Documents or any Product Material Contract in any material respect. Notwithstanding anything to the contrary in this Agreement, the Company shall not take any action or abstain from taking any action, directly or indirectly, which action or abstinence would have the effect of altering the terms and conditions of this Agreement or the other Transaction Documents (or any ancillary documents thereto) in a manner that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

(b) The Company and its Subsidiaries shall not enter into any Contract, grant any right to any other Person with respect to the Products or amend or waive any requirements under any agreement with respect to the Products that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

Section 7.8 Affiliates. The Company shall not permit any Affiliate to own (a) any portion of the Collateral (other than, in the case of a Subsidiary, pursuant to a Permitted Transfer), (b) any material assets or rights related to the Product (other than, in the case of a Subsidiary, pursuant to a Permitted Transfer), or (c) any assets that generate Net Sales.

 

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ARTICLE VIII

THE CLOSING

 

Section 8.1 Closing. Subject to the terms of this Agreement, the closing of the transactions contemplated hereby (the “Closing”) shall take place on the date of the closing of the PIPE Transaction concurrent with the closing of the De-SPAC Transaction (the “Closing Date”).

 

Section 8.2 Closing Deliverables of the Company. At the Closing, the Company shall deliver or cause to be delivered to the Investor the following (collectively, the “Closing Documents”):

 

(a) Transaction Documents. Receipt by the Investor of executed counterparts (including by electronic means) of the Security Agreement, the Intercreditor Agreement, the Guaranty, and the other Transaction Documents, in each case duly executed and delivered to the Investor by each party thereto (other than the Investor) and in form and substance reasonably satisfactory to the Investor, together with all documents required to be delivered or filed under the Security Agreement and evidence satisfactory to the Investor that arrangements have been made with respect to all registrations, notices or actions required under the Security Agreement to be effected (including any UCC financing statements), given or made in order to establish a valid and perfected second priority security interest in the Collateral in accordance with the terms of the Security Agreement and the Intercreditor Agreement.

 

(b) Organization Documents, Resolutions, Etc. Receipt by the Investor of the following, in form and substance reasonably satisfactory to the Investor:

 

(i) copies of the certificate of incorporation of each Grantor certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and the other Organization Documents, in each case certified by a secretary or assistant secretary (or, if such entity does not have a secretary or assistant secretary, a Responsible Officer) of such Grantor to be true and correct as of the Closing Date;

 

(ii) resolutions of the governing body of each of Grantor as the Investor may reasonably require, authorizing and approving the execution, delivery and performance by such Grantor of the Transaction Documents and the transactions contemplated hereby and thereby;

 

(iii) such incumbency certificates and/or other certificates of Responsible Officers of each Grantor as the Investor may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Transaction Documents to which such Grantor is a party; and

 

(iv) a certificate of good standing (or local equivalent) for each Grantor from the secretary of state or equivalent Governmental Authority in the jurisdiction of organization of such Grantor (to the extent applicable in such jurisdiction) obtained as of a date no later than five (5) days prior to the Closing Date.

 

(c) Opinions of Counsel. Receipt by the Investor of a written legal opinion of Goodwin Procter LLP, addressed to the Investor, dated the Closing Date and in form and substance reasonably satisfactory to the Investor.

 

(d) Perfection and Priority of Liens. Receipt by the Investor of the following:

 

(i) searches of Uniform Commercial Code filings in the jurisdictions within the United States where a filing would need to be made in order to perfect the Investor’s security interest in the Collateral and copies of the financing statements on file in such jurisdictions, it being understood that such searches shall reveal that no Liens exist on the Collateral other than Permitted Liens or Liens to be discharged on the Closing Date;

 

(ii) financing statements naming each Grantor as a debtor and each Investor as the secured party, or other similar instruments, registrations, or documents, in each case suitable for filing, filed under the UCC (or equivalent law) of all jurisdictions as may be necessary or, in the opinion of the Investor, desirable to perfect the Liens of the Investors pursuant to the Security Agreement;

 

(iii) one or more Intellectual Property security agreements to evidence the Investor’s security interest in any IP Rights relating to the Products and the goodwill and general intangibles of the Company relating thereto or represented thereby and any other agreement, document or instrument required to be provided under the Security Agreement on the Closing Date, duly executed and delivered by the applicable Grantor.

 

(iv) searches of ownership of, and Liens on, the Product Patent Rights of each Grantor in the appropriate U.S. governmental offices.

 

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(e) Financial Statements. Receipt by the Investor, to the extent not already filed publicly with the SEC, within each Statement Period between the date hereof and the Closing, the applicable Quarterly Statement.

 

(f) Data Room. Receipt by the Investor of an electronic copy of all of the information and documents posted to the electronic data room established by the Company with respect to the transactions contemplated by this Agreement as of the date hereof.

 

(g) Other. Such other documents, instruments, reports, statements and information as may be reasonably requested by the Investor, in each case, in form and substance reasonably satisfactory to the Investor.

 

Section 8.3 Conditions to the Investor’s Obligations. The obligations of the Investor to consummate the transactions contemplated hereunder on the Closing Date are subject to the satisfaction or waiver, at or prior to the Closing Date, of each of the following conditions precedent:

 

(a) Responsible Officer’s Certificate. Receipt by the Investor of a certificate of a Responsible Officer of the Company certifying that:

 

(i) (A) the representations and warranties set forth in Article IV (other than the Fundamental Representations) were true and correct in all material respects as of the Effective Date and are true and correct in all material respects as of the Closing Date (or, if made as of a specific date, as of such date); provided, that to the extent that any such representation or warranty is qualified by the term “material” or “Material Adverse Effect” such representation or warranty (as so written, including the term “material” or “Material Adverse Effect”) was true and correct in all respects as of the Effective Date and is true and correct in all respects as of the Closing Date (or, if made as of a specific date, as of such date), as applicable and (B) the Fundamental Representations were true and correct in all respects as of the Effective Date and are true and correct in all respects as of the Closing Date (or, if made as of a specific date, as of such date);

 

(ii) The Company has performed and complied in all material respects with all, and has not been in material breach of any, agreements, covenants, obligations and conditions required to be performed and complied by it under this Agreement at or prior to the Closing Date; and

 

(iii) There has not occurred any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has resulted, or would reasonably be likely to result, in a Material Adverse Effect.

 

(b) No Judgments. There shall not have been issued and be in effect any Judgment of any Governmental Authority enjoining, preventing or restricting the consummation of the transactions contemplated by this Agreement.

 

(c) Closing Documents. Receipt by the Investor of the Closing Documents.

 

(d) Attorney Costs; Due Diligence Expenses. At or prior to (i) the Effective Date, the Company shall have paid the Transaction Expenses, and (ii) the Closing Date, the Company shall have paid the aggregate amount of any and all other documented out-of-pocket fees and expenses reasonably incurred by or on behalf of, or paid directly by, the Investor in connection with the diligence of the transactions contemplated hereby, the negotiation, preparation and execution of the Transaction Documents, and the consummation of the transactions contemplated hereby, incurred prior to or at the Closing Date, not to exceed an additional $750,000; provided that the condition set forth in this clause (d)(ii) will be satisfied by the transfer by the Investor of an amount equal to the Investment Amount minus the amount owed by the Company under this clause (d)(ii).

 

(e) Concurrent Transactions. The Pipe Transaction and the De-SPAC Transaction shall have closed, and the Parent shall have entered into a Joinder Agreement to become a party to the Guaranty as Guarantor and to the Security Agreement as Grantor.

 

(f) Convertible Notes. The Convertible Notes shall have been converted into common Equity Interests of the Company, and the Company shall have no outstanding Indebtedness or other obligations thereunder (other than contingent indemnification obligations for which no claim has been made in writing).

 

(g) Company Assumption Agreement. Merger Sub 2 shall have executed and delivered to the Investor a Company Assumption Agreement substantially in the form of Exhibit G hereto.

 

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ARTICLE IX

CONFIDENTIALITY

 

Section 9.1 Confidentiality; Permitted Use. During the Payment Term and for a period of three (3) years thereafter, each Party shall maintain in strict confidence all Confidential Information and materials disclosed or provided to it by the other Party, except as approved in writing in advance by the disclosing Party, and shall not use or reproduce the disclosing Party’s Confidential Information for any purpose other than as required to carry out its obligations and exercise its rights pursuant to this Agreement (the “Purpose”). The Party receiving such Confidential Information (the “Recipient”) agrees to institute measures to protect the Confidential Information in a manner consistent with the measures it uses to protect its own most sensitive proprietary and confidential information, which must not be less than a reasonable standard of care. Notwithstanding the foregoing, the Recipient may permit access to the disclosing Party’s Confidential Information to those of its employees or authorized representatives having a need to know such information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall be responsible for the breach of this Agreement by its employees or authorized representatives. Each Party shall immediately notify the other Party upon discovery of any loss or unauthorized disclosure of the other Party’s Confidential Information.

 

Section 9.2 Exceptions. The obligations of confidentiality and non-use set forth in ‎Section 9.1 shall not apply to any portion of Confidential Information that the Recipient or its Affiliates can demonstrate was: (a) known to the general public at the time of its disclosure to the Recipient or its Affiliates, or thereafter became generally known to the general public, other than as a result of actions or omissions of the Recipient, its Affiliates, or anyone to whom the Recipient or its Affiliates disclosed such portion; (b) known by the Recipient or its Affiliates, prior to the date of disclosure by the disclosing Party; (c) disclosed to the Recipient or its Affiliates on an unrestricted basis from a source unrelated to the disclosing Party and not known by the Recipient or its Affiliates to be under a duty of confidentiality to the disclosing Party; or (d) independently developed by the Recipient or its Affiliates by personnel that did not use the Confidential Information of the disclosing Party in connection with such development.

 

Section 9.3 Permitted Disclosures. The obligations of confidentiality and non-use set forth in Section 9.1 shall not apply to the extent that the receiving Party or its Affiliates:

 

(a) is required to disclose Confidential Information pursuant to: (i) an order of a court of competent jurisdiction; (ii) Applicable Laws; (iii) regulations or rules of a securities exchange; (iv) requirement of a Governmental Authority for purposes related to development or commercialization of a Product, or (v) the exercise by each Party of its rights granted to it under this Agreement or its retained rights or as required to perfect Investor’s rights under the Transaction Documents;

 

(b) discloses such Confidential Information solely on a “need to know basis” to Affiliates, potential or actual: acquirers, merger partners, licensees, permitted assignees, collaborators (including Licensees), subcontractors, investment bankers, limited partners, lenders, or other financial partners, and their respective directors, employees, contractors and agents;

 

(c) provides a copy of this Agreement or any of the other Transaction Documents to the extent requested by an authorized representative of a U.S. or foreign Tax authority; or

 

(d) discloses Confidential Information in response to a routine audit or examination by, or a blanket document request from, a Governmental Authority; provided that (A) such Third Party or person or entity in clause (b) agrees to confidentiality and non-use obligations with respect thereto at least as stringent as those specified for in this ‎ARTICLE IX; and (B) in the case of clauses (a)(i) through (iv) and clause (c), to the extent permitted by Applicable Law, the Recipient shall provide prior written notice thereof to the disclosing Party and provide the opportunity for the disclosing Party to review and comment on such required disclosure and request confidential treatment thereof or a protective order therefor; and provided, further that the Recipient will use reasonable efforts to secure confidential treatment of such information and the Confidential Information disclosed shall be limited to that information which is legally required to be disclosed.

 

Notwithstanding anything set forth in this Agreement, prior to any foreclosure on the Collateral, the Investor and the Investor shall not file any patent application based upon or using the Confidential Information of the Company provided hereunder.

 

Section 9.4 Return of Confidential Information. Each Party shall return or destroy, at the other Party’s instruction, all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement; provided, however, that each Party shall be entitled to retain one (1) copy of such Confidential Information of the other Party for legal archival purposes and/or as may be required by Applicable Law and neither Party shall be required to return, delete or destroy Confidential Information or any electronic files or any information prepared by such Party that have been backed-up or archived in the ordinary course of business consistent with past practice.

 

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ARTICLE X

INDEMNIFICATION

 

Section 10.1 Indemnification by the Company. The Company agrees to indemnify and hold the Investor and its Affiliates and any and all of their respective partners, directors, managers, members, officers, employees, agents and controlling persons (each, a “Investor Indemnified Party”) harmless from and against, and will pay to each Investor Indemnified Party the amount of, any and all Losses awarded against or incurred or suffered by such Investor Indemnified Party arising out of (a) any breach of any representation, warranty or certification made by the Company in any of the Transaction Documents or certificates given by the Company to the Investor in writing pursuant to this Agreement or any other Transaction Document, (b) any breach of or default under any covenant or agreement by the Company to the Investor pursuant to any Transaction Document, (c) any Excluded Liabilities and Obligations and (d) any fees, expenses, costs, liabilities or other amounts incurred or owed by the Company to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Agreement (collectively, the “Company Indemnification Obligations”); provided, however, that the foregoing shall exclude any indemnification to any Investor Indemnified Party (i) that results from the bad faith, gross negligence or willful misconduct of such Investor Indemnified Party, (ii) to the extent resulting from acts or omissions of the Company based upon the written instructions from any Investor Indemnified Party or (iii) for any matter to the extent of, and in respect of, which any Company Indemnified Party would be entitled to indemnification under ‎Section 10.2.

 

Section 10.2 Indemnification by the Investor. The Investor agrees to indemnify and hold each of the Company, its Affiliates and any and all of their respective partners, directors, managers, members, officers, employees, agents and controlling Persons (each, a “Company Indemnified Party”) harmless from and against, and will pay to each Company Indemnified Party the amount of, any and all Losses awarded against or incurred or suffered by such Company Indemnified Party arising out of (a) any breach of any representation, warranty or certification made by the Investor in any of the Transaction Documents or certificates given by the Investor in writing pursuant hereto or thereto, (b) any breach of or default under any covenant or agreement by the Investor pursuant to any Transaction Document and (c) any fees, expenses, costs, liabilities or other amounts incurred or owed by the Investor to any brokers, financial advisors or comparable other Persons retained or employed by it in connection with the transactions contemplated by this Agreement (collectively, the “Investor Indemnification Obligations”); provided, however, that the foregoing shall exclude any indemnification to any Company Indemnified Party (i) that results from the gross negligence, bad faith or willful misconduct of such Company Indemnified Party, (ii) to the extent resulting from acts or omissions of the Investor based upon the written instructions from any Company Indemnified Party or (iii) for any matter to the extent of, and in respect of, which any Investor Indemnified Party would be entitled to indemnification under ‎Section 10.1.

 

Section 10.3 Procedures. If any Third Party Claim shall be brought or alleged against an indemnified party in respect of which indemnity is to be sought against an indemnifying party pursuant to ‎Section 10.1 or ‎Section 10.2, the indemnified party shall, promptly after receipt of notice of the commencement of any such Third Party Claim, notify the indemnifying party in writing of the commencement thereof, enclosing a copy of all papers served, if any; provided, that the omission to so notify such indemnifying party will not relieve the indemnifying party from any liability that it may have to any indemnified party under ‎Section 10.1 or ‎Section 10.2 unless, and only to the extent that, the indemnifying party is actually prejudiced by such omission. In the event that any Third Party Claim is brought against an indemnified party and it notifies the indemnifying party of the commencement thereof in accordance with this ‎Section 10.3, the indemnifying party will be entitled, at the indemnifying party’s sole cost and expense, to participate therein. In any such Third Party Claim, an indemnified party shall have the right to retain its own counsel, but the reasonable fees and expenses of such counsel shall be at the sole cost and expense of such indemnified party unless (a) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (b) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to such indemnified party or (c) the named parties to any such Third Party Claim (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interests between them based on the advice of counsel to the indemnifying party. It is agreed that the indemnifying party shall not, in connection with any Third Party Claim or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate law firm (in addition to local counsel where necessary) for all such indemnified parties. The indemnifying party shall not be liable for any settlement of any Third Party Claim effected without its written consent, but, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any Loss by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or discharge of any pending or threatened Third Party Claim in respect of which any indemnified party is or would have been a party and indemnity would have been sought hereunder by such indemnified party, unless such settlement, compromise or discharge, as the case may be, (i) includes an unconditional written release of such indemnified party, in form and substance reasonably satisfactory to the indemnified party, from all liability on claims that are the subject matter of such claim or proceeding, (ii) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of any indemnified party and (iii) does not impose any continuing material obligation or restrictions on such indemnified party.

 

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Section 10.4 Other Claims. A claim by an indemnified party under this ‎ARTICLE X for any matter not involving a Third Party Claim and in respect of which such indemnified party seeks indemnification hereunder may be made by delivering, in good faith, a written notice of demand to the indemnifying party, which notice shall contain (a) a description and the amount of any Losses incurred or suffered by the indemnified party (and the method of computation of such Losses), (b) a statement that the indemnified party is entitled to indemnification under this ‎ARTICLE X for such Losses and a reasonable explanation of the basis therefor, and (c) a demand for payment in the amount of such Losses. For all purposes of this Section ‎10.4, the Company shall be entitled to deliver such notice of demand to the Investor on behalf of the Company Indemnified Parties, and the Investor shall be entitled to deliver such notice of demand to the Company on behalf of the Investor Indemnified Parties. Within thirty (30) days after receipt by the indemnifying party of any such notice, the indemnifying party may deliver to the indemnified party that delivered the notice a written response in which the indemnifying party (a) agrees that the indemnified party is entitled to the full amount of the Losses claimed in the notice from the indemnified party; (b) agrees that the indemnified party is entitled to part, but not all, of the amount of the Losses claimed in the notice from the indemnified party; or (c) indicates that the indemnifying party disputes the entire amount of the Losses claimed in the notice from the indemnified party. If the indemnified party does not receive such a response from the indemnifying party within such thirty (30)-day period, then the indemnifying party shall be conclusively deemed to have agreed that the indemnified party is entitled to the full amount. If the indemnifying party and the indemnified party are unable to resolve any Dispute relating to any amount of the Losses claimed in the notice from the indemnified party within thirty (30) days after the delivery of the response to such notice from the indemnifying party, then the parties shall be entitled to resort to any legal remedy available to such party to resolve such Dispute that is provided for in this Agreement, subject to all the terms, conditions and limitations of this Agreement.

 

Section 10.5 Exclusive Remedies. The indemnification afforded by this ‎ARTICLE X shall be the sole and exclusive remedy for any and all Losses awarded against or incurred or suffered by the Investor Indemnified Parties against the Company in connection with the Company Indemnification Obligations and the Company Indemnified Parties against the Investor in connection with the Investor Indemnification Obligations under ‎Section 10.1(a) or ‎Section 10.2, as applicable, in each case other than any Company Indemnification Obligations or Investor Indemnification Obligations, as applicable, resulting from (a) the gross negligence, the bad faith or willful misconduct of the other Party or (b) acts or omissions based upon the written instructions from the other Party; provided that nothing in this ‎Section 10.4 shall alter or affect the rights of the either Party to specific performance by the other Party under the Transaction Documents or the rights of the Investor to exercise remedies under the Transaction Documents after an Event of Default or other rights of creditors under the UCC or any other Applicable Law.

 

Section 10.6 Certain Limitations. The indemnification afforded by this ‎ARTICLE X shall be subject to the following limitations:

 

(a) With respect to indemnification by the Company pursuant to ‎Section 10.1(a), the Company’s maximum liability for any Loss suffered by an Investor Indemnified Party (other than any Loss resulting from a Third Party Claim) shall not exceed an amount (the “Company Indemnification Cap”) equal to (i) the Hard Cap and the amount of all of the other Obligations owed by the Company Parties to the Investor under this Agreement and the other Transaction Documents (other than the indemnification amounts payable under ‎Section 10.1(a)) as of the date of determination, minus (ii) the aggregate amount of all of the payments collected or received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) hereunder as of such date of determination (other than (A) any payments collected or received as a reimbursement of expenses incurred by any Investor Indemnified Party (including attorney’s fees) and (B) any indemnification payments collected or received pursuant to ‎Section 10.1(a)), minus (iii) the aggregate amount collected or received by the Investor (and any direct or indirect transferee of the Investor to whom any interest in the Revenue Interests is transferred) pursuant to the exercise of its rights under ‎Section 10.1(a) (without duplication of any amounts collected or received pursuant to clause (ii)) prior to such date of determination to the extent such amount was not collected or received in connection with a Third Party Claim. Notwithstanding the foregoing, the Company Indemnification Cap shall not apply to any Loss suffered by any Investor Indemnified Party in connection with a Third Party Claim.

 

(b) With respect to indemnification by the Investor pursuant to ‎Section 10.2, the Investor’s maximum liability shall not exceed an amount equal to the excess (if any) of (i) the aggregate amount of all of the payments collected or received by the Investor from the Company prior to the date of determination (excluding any amounts collected or received as a reimbursement of expenses incurred by the Investor or any indemnification amounts collected or received in connection with a Third Party Claim) over (ii) the Investment Amount.

 

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ARTICLE XI

EVENTS OF DEFAULT REMEDIES

 

Section 11.1 Remedies Upon Event of Default. If any Event of Default under clause (d) of the definition thereof has occurred and is continuing, the Company shall immediately pay the Hard Cap (less the aggregate of all of the payments of the Company in respect of the Revenue Interests made to the Investor prior to such date, plus any other Obligations payable by the Company Parties under this Agreement and the other Transaction Documents) to the Investor or the Investor’s designee without demand, presentment, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intention to accelerate, declaration or notice of acceleration or any other notice or declaration of any kind, all of which are hereby expressly waived by the Company and each Guarantor who at any time ratifies or approves this Agreement. In addition, if any other Event of Default has occurred and is continuing, the Investor may, without notice to the Company or any other Guarantor, declare any or all of the Hard Cap (less the aggregate of all of the payments of the Company in respect of the Revenue Interests made to the Investor prior to such date, plus any other Obligations payable by the Company Parties under this Agreement and the other Transaction Documents) immediately due and payable (and all of such amounts shall thereupon be immediately due and payable, without demand, presentment, notice of demand or of dishonor and nonpayment, protest, notice of protest, notice of intention to accelerate, declaration or notice of acceleration or any other notice or declaration of any kind, all of which are hereby expressly waived by the Company and each Guarantor who at any time ratifies or approves this Agreement) or otherwise exercise all rights and remedies available to it under the Transaction Documents and Applicable Law.

 

ARTICLE XII
MISCELLANEOUS

 

Section 12.1 Survival. All representations, warranties and covenants made herein and in any other Transaction Document or any certificate delivered pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing. The rights hereunder to indemnification and payment of Losses under ‎ARTICLE X or to specific performance under ‎Section 12.2 based on such representations, warranties and covenants shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time (whether before or after the execution and delivery of this Agreement or the Closing) in respect of the accuracy or inaccuracy of or compliance with, any such representation, warranty or covenant. Any Obligations that arose prior to the expiration of the Payment Term shall survive such expiration.

 

Section 12.2 Specific Performance. Each of the Parties hereto acknowledges that irreparable damage would occur, and the other Party hereto may not have adequate remedy at law, if the other Party fails to perform any of its obligations under any of the Transaction Documents. In such event, each of the Parties hereto agrees that the other Party hereto shall have the right, in addition to any other rights it may have (whether at law or in equity), to specific performance of this Agreement, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Supreme Court of the State of New York sitting in New York County, provided that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then in the United States District Court of the Southern District of New York or any other New York state court, this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief. The Parties further agree not to assert that a remedy of specific performance is unenforceable, invalid, contrary to Applicable Law or inequitable for any reason.

 

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Section 12.3 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be effective (a) upon receipt when sent through the mails, registered or certified mail, return receipt requested, postage prepaid, with such receipt to be effective the date of delivery indicated on the return receipt, (b) upon receipt when sent by an overnight courier (costs prepaid and receipt requested), (c) on the date personally delivered to an authorized officer of the party to which sent or (d) on the date transmitted by electronic transmission (other than facsimile transmission) with a confirmation of receipt, in all cases, with a copy emailed to the recipient at the applicable address, addressed to the recipient as follows:

 

if to the Company, to:

 

Allurion Technologies Inc. 

11 Huron Drive 

Natick, MA 01760 

Attn: Chris Geberth, Shantanu Gaur 

cgeberth@allurion.com; sgaur@allurion.com

 

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

 

Goodwin Procter LLP

500 Broadway Suite #500

Santa Monica, CA 90401

Attn: Kris Ring

Email: kring@goodwinlaw.com

 

if to the Investor, to:

 

RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd., and RTW Venture

Fund Limited

c/o RTW Investments, LP

40 10th Avenue, Floor 7

New York, NY 10014

Attn: Roderick Wong and Ovid Amadi

Email: rw@rtwfunds.com; oa@rtwfunds.com and legalops@rtwfunds.com

 

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

 

Gibson, Dunn & Crutcher LLP
555 Mission Street
San Francisco, CA 94105
Attn: Ryan A. Murr; Todd J. Trattner
Email: rmurr@gibsondunn.com; ttrattner@gibsondunn.com

 

Each Party hereto may, by notice given in accordance herewith to the other Party hereto, designate any further or different address to which subsequent notices, consents, waivers and other communications shall be sent.

 

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Section 12.4 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Except in connection with the De-SPAC Transaction and pursuant to the Company Assumption Agreement, the Company shall not be entitled to assign any of its obligations and rights under this Agreement without the prior written consent of the Investor. After the Closing Date, the Investor may assign any of its obligations and rights hereunder to any other Person without the consent of the Company. The Investor shall give notice of any such assignment to the Company promptly after the occurrence thereof. The Company shall maintain a “register” at one of its offices in the United States for the recordation of the name and address of, and the amounts owing to, the Investor from time to time. Notwithstanding anything to the contrary contained in this Agreement, no assignment of any interest of the Investor in the rights and obligations hereunder shall be effective until such assignment is recorded in such register and, consistent with the foregoing, the Company shall treat the party recorded in such register as the Investor under this Agreement, notwithstanding notice to the contrary. This ‎Section 12.4 is intended to be construed so that the Obligations are at all times maintained in “registered form” within the meaning of U.S. Treasury Regulations Section 5f.103-1(c) (or any other successor provision of such regulations) and U.S. Proposed Treasury Regulations Section 1.163-5(b) and to comply with other requirements of applicable Tax law. The Company shall be under no obligation to reaffirm any representations, warranties or covenants made in this Agreement or any of the other Transaction Documents. Any purported assignment of rights or obligations in violation of this ‎Section 12.4 will be void.

 

Section 12.5 Independent Nature of Relationship. The relationship between the Company and the Investor is solely that of lender and borrower, and neither the Company nor any of the Investor has any fiduciary or other special relationship with the any of the Investor and their Affiliates on the one hand, or the Company and its Affiliates on the other hand. Nothing contained herein or in any other Transaction Document shall be deemed to constitute the Company and the Investor as a partnership, an association, a joint venture or any other kind of entity or legal form. The Parties agree that they shall not take any inconsistent position with respect to such treatment in a filing with any Governmental Authority.

 

Section 12.6 Expenses. On the date hereof, the Company shall reimburse the Investor for the Transaction Expenses. Upon the earlier of (a) (i) the Closing, (ii) termination of this Agreement, or (iii) termination of any of the transactions contemplated hereby, including the PIPE Transaction or the De-SPAC Transaction, or (b) August 7, 2023, if the Closing does not occur by such date, the Company shall reimburse the Investor the aggregate amount of any and all other documented out-of-pocket fees and expenses reasonably incurred by or on behalf of, or paid directly by, the Investor in connection with the diligence of the transactions contemplated hereby, and the negotiation, preparation and execution of the Transaction Documents, and to consummate the transactions contemplated hereby, not to exceed an additional $750,000. In addition, but without duplication of the Company’s indemnification obligations pursuant to ‎ARTICLE X, the Company agrees to promptly pay or reimburse the Agent and the Investor for all of their reasonable and documented out-of-pocket costs and expenses (including the out-of-pocket fees and expenses of legal counsel, but limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of one lead counsel for the Agent and Investor, together, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Agent and Investor together and, in the case of actual conflict of interest, one additional such set of applicable counsel)) in connection with any enforcement or collection proceedings, including with respect to the Collateral, during the continuance of an Event of Default.

 

Section 12.7 Appointment of the Agent. Each Investor hereby irrevocably appoints RTW Investments, LP (together with any successor) (the “Agent”) as the administrative agent hereunder and authorizes the Agent to (i) execute and deliver the Transaction Documents and accept delivery thereof on its behalf from the Company, Parent or any of its Subsidiaries, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Transaction Documents and (iii) exercise such powers as are reasonably incidental thereto.

 

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Section 12.8 Entire Agreement. This Agreement, together with the Exhibits hereto (which are incorporated herein by reference) and the other Transaction Documents, constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties hereto with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein (or in the Exhibits hereto or the other Transaction Documents) has been made or relied upon by either Party hereto.

 

Section 12.9 Governing Law.

 

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW OR CHOICE OF FORUM OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

(b) Each of the Parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by Applicable Law, in such federal court. Each of the Parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Law.

 

(c) Each of the Parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in ‎Section 12.9(b). Each of the Parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(d) Each of the Parties hereto irrevocably consents to service of process in the manner provided for notices in ‎Section 12.3. Nothing in this Agreement will affect the right of any Party hereto to serve process in any other manner permitted by Applicable Law. Each of the Parties hereto waives personal service of any summons, complaint or other process, which may be made by any other means permitted by New York law.

 

Section 12.10 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY HERETO WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS ‎Section 12.10.

 

Section 12.11 Severability. If one or more provisions of this Agreement are held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, which shall remain in full force and effect, and the Parties hereto shall replace such invalid, illegal or unenforceable provision with a new provision permitted by Applicable Law and having an economic effect as close as possible to the invalid, illegal or unenforceable provision. Any provision of this Agreement held invalid, illegal or unenforceable only in part or degree by a court of competent jurisdiction shall remain in full force and effect to the extent not held invalid, illegal or unenforceable.

 

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Section 12.12 Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by the other Party hereto. Any counterpart may be executed by facsimile or other electronic transmission, and such facsimile or other electronic transmission shall be deemed an original.

 

Section 12.13 Amendments; No Waivers. This Agreement or any term or provision hereof may be amended, supplemented, restated, waived, changed or modified if, and only if, such amendment, supplement, restatement, change or modification is in writing and signed by both the Company and the Investor, or in the case of a waiver signed by the Party against whom the waiver is to be effective. No failure or delay by either Party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No notice to or demand on either Party hereto in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval hereunder shall, except as may otherwise be stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.

 

Section 12.14 No Third Party Rights. Other than the Parties, no Person will have any legal or equitable right, remedy or claim under or with respect to this Agreement. This Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person who is not a Party. The Company shall enforce any legal or equitable right, remedy or claim under or with respect to this Agreement for the benefit of the Company Indemnified Parties and the Investor shall enforce any legal or equitable right, remedy or claim under or with respect to this Agreement for the benefit of the Investor Indemnified Parties.

 

Section 12.15 Table of Contents and Headings. The Table of Contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.

 

[SIGNATURE PAGE FOLLOWS]

 

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

 

  Allurion Technologies Inc.  
   
  By: /s/ Shantanu Gaur
    Name:  Shantanu Gaur
    Title: Chief Executive Officer

 

[Signature Page to Revenue Interest Financing Agreement]

 

 

 

 

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

 

  RTW MASTER FUND, LTD.
   
  By: /s/ Roderick Wong
    Name:  Roderick Wong, M.D.
    Title: Director
     
  RTW INNOVATION MASTER FUND, LTD.
   
  By: /s/ Roderick Wong
  Name: Roderick Wong, M.D.
  Title: Director
     
  RTW VENTURE FUND LIMITED
   
  By: RTW Investments, LP, its Investment Manager
   
  By: /s/ Roderick Wong
  Name:  Roderick Wong, M.D.
  Title: Managing Partner

 

[Signature Page to Revenue Interest Financing Agreement]

 

 

 

 

EXHIBIT A

 

FORM OF PRESS RELEASE

 

[Attached]

 

 

 

 

 

 

 

 

 

 

 

EXH. A

 

 

EXHIBIT B

FORM OF COMPLIANCE CERTIFICATE

 

Financial Statement Date: __________, 20___ (the “Financial Statement Date”)

 

To:RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd., and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey, as the Investor

 

Re:Revenue Interest Financing Agreement dated as of January 31, 2023 (as amended, modified, restated, supplemented or extended from time to time, the “Revenue Interest Financing Agreement”) by and among Allurion Technologies, Inc., a Delaware corporation (the “Company”) and RTW Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (each and collectively, the “Investor”). Capitalized terms used but not otherwise defined herein have the meanings provided in the Revenue Interest Financing Agreement.

 

Ladies and Gentlemen:

 

The undersigned [chief executive officer / chief financial officer / treasurer / controller] hereby certifies as of the date hereof that [he/she] is the _______________ of the Company, and that, in [his/her] capacity as such, [he/she] is authorized to execute and deliver this Compliance Certificate to the Investor on the behalf of the Company, and that:

 

[Use following paragraph 1 for fiscal year-end financial statements that are not previously filed with the SEC:]

 

[1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.9(a) of the Revenue Interest Financing Agreement for the fiscal year of the Company ended as of the Financial Statement Date, together with the report and opinion of an independent certified public accountant required by such Section.]

 

[Use following paragraph 1 for fiscal quarter-end financial statements that are not previously filed with the SEC:]

 

[1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.9(b) of the Revenue Interest Financing Agreement for the fiscal quarter of the Company ended as of the Financial Statement Date. Such financial statements fairly present in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.]

 

2. The undersigned has reviewed and is familiar with the terms of the Revenue Interest Financing Agreement and has made, or has caused to be made, a reasonably detailed review of the transactions and condition (financial or otherwise) of the Company during the past fiscal quarter.

 

3. A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all of its Obligations, and

 

[select one:]

 

[to the knowledge of the undersigned during such fiscal period, the Company performed and observed each covenant and condition of the Transaction Documents applicable to it, and no Default or Event of Default has occurred and is continuing.]

 

[or:]

 

[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and/or Event of Default and its nature and status:]

 

[Signature Page Follows]

 

EXH. B-1

 

 

IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of __________, 20__.

 

  Allurion Technologies, LLC, a Delaware limited liability company
   
  By:  
    Name:            
    Title:   

 

EXH. B-2

 

 

EXHIBIT C

 

EXAMPLE OF CALCULATION OF INCLUDED PRODUCT PAYMENT AMOUNT

 

       Total Calendar Year Net Sales
($ millions)
 
       Q1   Q2   Q3   Q4 
                     
Period’s Net Sales       $40.0   $50.0   $60.0   $70.0 
Cumulative Annual Net Sales       $40.0   $90.0   $150.0   $220.0 
                          
A. Portion of Annual Net Sales less than or equal to $100,000,000       $40.0   $50.0   $10.0   $ 
B. Portion of Annual Net Sales greater than $100,000,000 and less than or equal to $200,000,000       $   $   $50.0   $50.0 
C. Portion of Annual Net Sales greater than $200,000,000       $   $   $  $20.0 
                          
Applicable Tiered Percentage for A   6.0%  $2.4   $3.0   $0.6   $ 
Applicable Tiered Percentage for B   3.0%  $   $   $1.5   $1.5 
Applicable Tiered Percentage for C   0.5%  $   $   $   $0.1 
                          
Payment for each Calendar Quarter       $2.4   $3.0   $2.1   $1.6 

 

EXH. C

 

 

EXHIBIT D

 

FORM OF JOINDER AGREEMENT

 

THIS JOINDER AGREEMENT (this “Agreement”) dated as of [_______] is by and among [NAME OF NEW GUARANTOR] (the “New Guarantor”) and [RTW Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey] (each and collectively, the “Secured Party”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Revenue Interest Financing Agreement, dated as of January 31, 2023 (as amended, restated, amended and restated, supplemented and otherwise modified from time to time, the “Revenue Interest Financing Agreement”), among Allurion Technologies, Inc., a Delaware corporation (the “Company”) and the Secured Party, as Investors.

 

The New Guarantor is required by ‎Section 6.1(a) of the Revenue Interest Financing Agreement to become a “Guarantor” under the Guaranty. Accordingly and as of the date hereof, the New Guarantor hereby agrees as follows with the Secured Party:

 

1. The New Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Guarantor will be deemed to be a “Guarantor” for all purposes under the Guaranty, and shall have all of the obligations of a Guarantor under the Guaranty as if it had executed the Guaranty. The New Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Guaranty. Without limiting the generality of the foregoing terms of this Section 1, the New Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Secured Party (and its successors and assigns), as primary obligor and not merely as surety, the due and punctual payment as and when due of all of the Guaranteed Obligations (as defined in the Guaranty).

 

2. Without limiting the generality of the terms of Section 1, to the extent applicable to it, the New Guarantor hereby represents and warrants to the Secured Party that the representations and warranties in the ‎ARTICLE IV of the Revenue Interest Financing Agreement applicable to the New Guarantor are true and correct in all material respects as of the date hereof (or, if made as of a specific date, as of such date); provided, that to the extent that any such representation or warranty is qualified by the term “material” or “Material Adverse Effect” such representation or warranty (as so written, including the term “material” or “Material Adverse Effect”) shall have been true and correct in all respects as of the date hereof and shall be true and correct in all respects as of the Closing Date or such other date, as applicable.

 

3. The address of the New Guarantor for purposes of all notices and other communications is the address designated for the Company or such other address as the New Guarantor may from time to time notify the Secured Party in writing.

 

4. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

5. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

[Signature Page Follows]

 

EXH. D-1

 

 

IN WITNESS WHEREOF, the New Guarantor has caused this Joinder Agreement to be duly executed by their authorized officers, and the Secured Party has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 

[NAME OF NEW GUARANTOR]  
   
By:    
  Name:  
  Title:  
     
Acknowledged and accepted:  
   
Secured Party:  
   
RTW MASTER FUND, LTD.  
   
By:    
Name:  Roderick Wong, M.D.  
Title: Director  
     
RTW INNOVATION MASTER FUND, LTD.  
   
By:    
Name: Roderick Wong, M.D.  
Title: Director  
   
RTW VENTURE FUND LIMITED  
   
By: RTW Investments, LP, its Investment Manager  
   
By:    
Name: Roderick Wong, M.D.  
Title: Managing Partner  

 

EXH. D-2

 

 

EXHIBIT E

 

FORM OF INTERCREDITOR AGREEMENT

 

[Attached]

 

 

 

 

 

EXH. E

 

 

EXHIBIT F

 

FORM OF SECURITY AGREEMENT

 

[Attached]

 

 

 

 

 

 

EXH. F

 

 

EXHIBIT G

 

FORM OF COMPANY ASSUMPTION AGREEMENT

 

THIS COMPANY ASSUMPTION AGREEMENT (this “Agreement”) dated as of [_______] is by and among Allurion Technologies, LLC, a Delaware limited liability company (the “Company”), and RTW Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, RTW Innovation Master Fund, Ltd., an exempted company incorporated in the Cayman Islands with limited liability, and RTW Venture Fund Limited, an investment company limited by shares incorporated under the laws of Guernsey (each and collectively, the “Secured Party”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Revenue Interest Financing Agreement, dated as of January 31, 2023 (as amended, restated, amended and restated, supplemented and otherwise modified from time to time, the “Revenue Interest Financing Agreement”), among Allurion Technologies, Inc., a Delaware corporation (the “Assignor”), and the Secured Party, as Investors.

 

The Company is required by Section 8.3(g) of the Revenue Interest Financing Agreement to assume all of the rights, liabilities, and obligations of the Assignor under the Revenue Interest Financing Agreement and to become a “Grantor” under the Security Agreement. Accordingly and as of the date hereof, the Company hereby agrees as follows with the Secured Party:

 

1. The Company hereby assumes all rights, liabilities, and obligations of the Assignor under and pursuant to the Revenue Interest Financing Agreement and each of the Transaction Documents, without duplication of any assumption that may have occurred pursuant to applicable law pursuant to the Business Combination Agreement. and agrees to perform and comply with all of the covenants and obligations of the Assignor under the Revenue Interest Financing Agreement and each of the Transaction Documents.

 

2. The Company hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Company will be deemed to be a party to the Revenue Interest Financing Agreement. The Company hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Revenue Interest Financing Agreement and each of the Transaction Documents, including the Security Agreement. Without limiting the generality of the foregoing terms of this Section 2, as collateral security for the prompt and complete payment and performance when due of the Secured Obligations, the Company hereby grants to the Secured Party, a continuing security interest in and lien on any and all right, title and interest of the Company in, to and under the Collateral, whether now owned or at any time hereafter acquired by the Company, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as defined in the Security Agreement).

 

3. The Company hereby represents and warrants to the Secured Party that the representations and warranties set forth in ‎ARTICLE IV of the Revenue Interest Financing Agreement are hereby made herein by the Company as though set forth herein in full, and are true and correct in all material respects as of the date hereof (or, if made as of a specific date, as of such date); provided, that to the extent that any such representation or warranty is qualified by the term “material” or “Material Adverse Effect” such representation or warranty (as so written, including the term “material” or “Material Adverse Effect”) is true and correct in all respects as of the date hereof (or such other date, as applicable.

 

4. The address of the Company for purposes of all notices and other communications is the address designated in the Revenue Interest Financing Agreement or such other address as the Company may from time to time notify the Secured Party in writing.

 

5. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

6. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

[Signature Page Follows]

 

EXH. G-1

 

 

IN WITNESS WHEREOF, the Company has caused this Company Assumption Agreement to be duly executed by their authorized officers, and the Secured Party has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 

ALLURION TECHNOLOGIES, LLC  
   
By:    
  Name:                            
  Title:    
       
Acknowledged and accepted:  
   
Secured Party:  
   
RTW MASTER FUND, LTD.  
   
By:    
Name: Roderick Wong, M.D.  
Title: Director
     
RTW INNOVATION MASTER FUND, LTD.  
   
By:    
Name:  Roderick Wong, M.D.  
Title: Director  
     
RTW VENTURE FUND LIMITED  
   
By: RTW Investments, LP, its Investment Manager  
   
By:  
Name: Roderick Wong, M.D.  
Title: Managing Partner  

 

EXH. G-2

 

 

EXHIBIT H

 

FORM OF GUARANTY

 

[Attached]

 

 

 

 

 

EXH. H

Exhibit 10.9

 

BRIDGING AGREEMENT

 

This BRIDGING AGREEMENT, dated as of February 9, 2023 (this “Agreement”), is by and among Allurion technologies, INC., a Delaware corporation (the “Borrower”), the Lenders party hereto (each, a “Lender” and collectively, the “Lenders”), and fortress credit corp., as administrative agent for the Lenders (in such capacity, the “Agent”). Capitalized terms used herein without definition shall have the same meanings set forth in the Credit Agreement (as defined below).

 

RECITALS

 

WHEREAS, the Borrower has requested that the Lenders commit to providing a senior secured term loan facility to the Borrower in an aggregate principal amount of $60,000,000 pursuant to the terms and conditions set forth in the Form of Credit Agreement and Guaranty attached hereto as Exhibit A (the “Credit Agreement”), including the applicable terms and conditions set forth in Section 6 thereof (such transaction, the “Transaction”); and

 

WHEREAS, the Lenders are willing to commit to provide such senior secured term loan facility on the terms and conditions set forth herein and in the Credit Agreement.

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

ARTICLE I
COMMITMENT; agreements

 

SECTION 1.01. Commitment.  The Lenders shall make the Loans under the Credit Agreement on the Closing Date subject to the prior or concurrent satisfaction (or waiver thereof by the Agent and the Lenders) of each of the conditions precedent set forth below in this Section 1.01 on or before August 7, 2023.

 

(a) The Borrower and each other Obligor shall have executed and delivered to the Agent the Credit Agreement and each other Loan Document to be entered into on the Closing Date.

 

(b) On or prior to the earlier of the April 30, 2023 and the Business Day occurring immediately prior to the Closing Date, the Borrower shall have consummated one or more private (x) sales of the Borrower’s Equity Interests or (ii) incurrences of Indebtedness for borrowed money resulting in aggregate net proceeds to the Borrower (after giving effect to all fees, costs and expenses related to the issuance or incurrence thereof, including conversion, prepayment or similar fees, costs or expenses relating to the conversion, satisfaction or retirement thereof) of at least $15,000,000 (the “Interim Financing”); provided that immediately prior to or simultaneously with the making of the Loan on the Closing Date, all Equity Interests and Indebtedness comprising the Interim Financing shall qualify as (or shall have been converted into) Qualified Equity Interests.

 

(c) All conditions precedent set forth in Section 6.01 of the Credit Agreement shall have been satisfied or waived by the Agent and the Lenders.

 

 

 

 

(d) The Agent shall have received (or shall substantially contemporaneously with the funding of the Loans receive) for its account and the account of each Lender, all fees required to be paid on the Closing Date under this Agreement, the Credit Agreement, any other Loan Document (including to the extent applicable the Ticking Fee).

 

(e) Without the Agent’s prior written consent, except for (i) the issuance of debt or equity securities referenced in clause (b) above, (ii) the performance of their respective obligations under and pursuant to the Loan Documentation, the RTW Royalty Agreement, the PIPE Agreements, the DE-SPAC Combination Agreement and any related agreements, in each case as in effect on the date hereof, or (iii) as required by applicable law, neither the Parent, the Borrower nor any of their respective Subsidiaries shall have (x) conducted any of their respective businesses or affairs other than in the ordinary course consistent with past practices or (ii) without limitation of clause (x) above, but without limiting, prohibiting or otherwise preventing the actions set forth on the Company Disclosure Schedules with respect to (but only with respect to) Section 5.1(b) of the DE-SPAC Combination Agreement (in each case as in effect on the date hereof), taken any action of the type described in clauses (i), (ii), (ix), (xii) or (xxii) of Section 5.1(b) of the DE-SPAC Combination Agreement (as in effect on the date hereof).

 

SECTION 1.02. Ticking Fee.  In the event the Closing Date has not occurred on or before March 31, 2023, a fee (the “Ticking Fee”) shall commence accruing as of April 1, 2023 on the total amount of the Commitment, calculated on the basis of a per annum rate equal to 1.00% per annum for the actual number of days elapsed in a year of 360 days from such date until the earlier to occur of (i) the Closing Date and the (ii) the date of termination or expiration of this Agreement (such earlier date, the “Ticking Fee Payment Date”).  The Ticking Fee shall be payable to the Agent on the Ticking Fee Payment Date for distribution to the Lenders in accordance with their respective Proportionate Shares. The Ticking Fee shall be fully earned, non-refundable and shall be due and payable in cash in full on the Ticking Fee Payment Date.

 

SECTION 1.03. Termination.  This Agreement may not be terminated prior to August 7, 2023 without the prior written consent of the Borrower, the Agent and the Lenders. On August 7, 2023, this Agreement shall terminate and have no further force and effect and the Lenders’ commitment set forth in Section 1.01 above shall irrevocably expire.

 

SECTION 1.04. Other Agreements

 

(a) Expenses. The Borrower agrees to pay or reimburse the Agent and the Lenders for all of their reasonable and documented (in reasonable detail) out-of-pocket costs and expenses limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of Morrison & Foerster LLP, lead counsel for the Agent and the Lenders, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Agent and the Lenders in connection with the negotiation, preparation, execution and delivery of this Agreement, the Credit Agreement and the other Loan Documents (including any amendment or modifications thereto).

 

(b) Exculpation, Indemnification, etc.

 

(i) In no event shall any party hereto, any successor, transferee or assignee of any party hereto, or any of their respective Affiliates, directors, officers, employees, attorneys, agents, advisors or controlling parties (each, an “Exculpated Party”) have any obligation or responsibility for (and the Borrower waives any claims they may have in respect of) any Loss, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to this Agreement, the Credit Agreement or any of the other Loan Documents or the Transaction; provided that, nothing in this clause (i) shall relieve the Borrower of any obligation the Borrower may have to indemnify an Indemnified Person, as provided in clause (ii) below, against any special, indirect, consequential or punitive damages asserted against such Indemnified Person by a third party.  Each party hereto agrees, to the fullest extent permitted by applicable Law, that it will not assert, directly or indirectly, any Claim against any Exculpated Party with respect to any of the foregoing.

 

2

 

 

(ii) The Borrower shall indemnify the Agent, each Lender, each of their respective successors, transferees and assigns and each of their respective Affiliates, directors, officers, employees, attorneys, agents, advisors and controlling parties (each, an “Indemnified Party”) from and against, and agrees to hold them harmless against, any and all Claims and Losses of any kind (limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of one lead counsel for all Indemnified Parties, together, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Indemnified Parties together and, in the case of actual conflict of interest, one additional such set of applicable counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding (each, a “Proceeding”) or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement, the Credit Agreement or any of the other Loan Documents or the Transaction, whether or not such Proceeding is brought by the Borrower, any of its Subsidiaries, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Section 1.01 are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such Claim or Loss is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct.

 

(iii) The Borrower shall not be liable for any settlement of any Proceeding if the amount of such settlement was effected without the Borrower’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with the Borrower’s written consent or if there is a final judgment for the plaintiff in any such Proceeding, the Borrower agrees to indemnify and hold harmless each Indemnified Person from and against any and all Loss and related expenses by reason of such settlement or judgment in accordance with the terms of clause (ii) above. The Borrower shall not, without the prior written consent of the Agent (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by any Indemnified Person unless such settlement (x) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to the Agent from all liability on Claims that are the subject matter of such Proceedings and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person or any injunctive relief or other non-monetary remedy.  The Borrower acknowledges that any failure to comply with the obligations under the preceding sentence may cause irreparable harm to the Agent and the other Indemnified Persons.

 

(c) Confidentiality. This Agreement and the contents hereof and thereof are confidential and may not be disclosed by the Borrower in whole or in part to any Person without the prior written consent of the Agent; provided that the Borrower may disclose this Agreement (i) on a confidential basis to its board of directors, managers, members, shareholders, officers, employees, attorneys, and advisors in connection with their consideration of the Transaction and (ii) as may be compelled, in the Borrower’s reasonable judgment, in a Proceeding or as otherwise required by Law.

 

(d) Exclusivity. The Borrower agrees that prior to the earliest to occur of (i) the Closing Date under the Credit Agreement and (ii) the termination of the De-SPAC Combination Agreement, neither it, nor any of its Affiliates, will, nor will it cause or permit its directors, officers, agents or representatives or any other person acting on its behalf to, directly or indirectly, (i) solicit offers, letters of intent, inquiries, proposals or indications of interest or commitments for, or entertain any offer, letter of intent inquiries, proposal or indication of interest or commitment to enter into a transaction similar to or competing with, the Transaction (a “Competing Transaction”), or (ii) engage in any discussions or negotiations, provide any information to, or enter into any agreement, arrangement or understanding regarding a Competing Transaction.

 

3

 

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES

 

SECTION 2.01. To induce the Agent and the Lenders to execute and deliver this Agreement, the Borrower hereby represents and warrants to the Agent and the Lenders that as of the date hereof, each of the following statements are true and correct:

 

(a) The execution and delivery of this Agreement, and the performance of this Agreement has been duly authorized by all necessary corporate or other organizational action on the part of the Borrower and this Agreement constitutes a legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its respective terms, except as enforcement may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights generally and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

(b) The execution and delivery of this Agreement, and the performance of this Agreement, by the Borrower, does not (i) violate or conflict with any Law, (ii) result in the creation of any Lien (other than Permitted Liens) on any asset of the Borrower or (iii) violate, or result in a default under, any Material Agreement binding upon the Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

 

(c) No authorization or approval or other action by, and no notice or filing with, any Governmental Authority or any other Person (other than those that have been duly obtained or made and which are in full force and effect) is required for the due execution and delivery of this Agreement by the Borrower.

 

ARTICLE III
Miscellaneous

 

SECTION 3.01. Governing Law; Jurisdiction; Jury Trial.

 

(a) This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 and 5-1402 of the New York General Obligations Law shall apply.

 

(b) The Borrower agrees that any suit, action or proceeding with respect to this Agreement, the Credit Agreement or any other Loan Document to which it is a party or any judgment entered by any court in respect thereof may be brought initially in the federal or state courts in New York, New York and irrevocably submits to the non-exclusive jurisdiction of each such court for the purpose of any such suit, action, proceeding or judgment. This Section is for the benefit of the Agent and the Lenders only and, as a result, no Lender shall be prevented from taking proceedings in any other courts with jurisdiction. To the extent allowed by any applicable Law, the Lenders may take concurrent proceedings in any number of jurisdictions.

 

(c) Nothing herein shall in any way be deemed to limit the ability of the Agent and the Lenders to serve any process or summons in any manner permitted by any applicable Law.

 

4

 

 

(d) The Borrower irrevocably waives to the fullest extent permitted by law any objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement, the Credit Agreement or any other Loan Document and hereby further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court to the jurisdiction of which the Borrower is or may be subject, by suit upon judgment.

 

(e) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

SECTION 3.02. Counterparts; Effectiveness; Electronic Signatures. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. This Agreement shall become effective upon receipt by the Agent of fully executed counterparts of this Agreement by the Lenders and the Borrower. Any signature (including, without limitation, (x) any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record and (y) any facsimile or .pdf signature) hereto or to any other certificate, agreement or document related to this transaction, and any contract formation or record-keeping, in each case, through electronic means, shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereto hereby waive any objection to the contrary.

 

SECTION 3.03. Binding Nature. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns permitted by the Loan Documents; provided that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agent.

 

SECTION 3.04. Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.

 

SECTION 3.05. Severability. If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by any applicable Law the parties agree that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof.

 

SECTION 3.06. Integration. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

 

[Signature pages to follow]

 

5

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date hereof.

 

  BORROWER:
   
  ALLURION TECHNOLOGIES, INC.
   
  By /s/ Shantanu Gaur
    Name:  Shantanu Gaur
    Title: Chief Executive Officer

 

[Signature Page to Bridging Agreement]

 

 

 

 

  AGENT:
   
  FORTRESS CREDIT CORP.
   
  By /s/ Avraham Dreyfuss
    Name:  Avraham Dreyfuss
    Title: Chief Financial Officer

 

 

 

  

  LENDERS:
   
  FORTRESS CREDIT CORP.
   
  By /s/ Avraham Dreyfuss
    Name:  Avraham Dreyfuss
    Title: Chief Financial Officer

 

 

 

 

Exhibit A

 

Form of Credit Agreement and Guaranty

 

(See attached).

 

 

 

 

Exhibit A

to Bridging Agreement

 

 

 

 

 

 

 

CREDIT AGREEMENT AND GUARANTY

 

dated as of

 

[__], 2023

 

by and among

 

[__]1,

as the Borrower,

 

[__]2,

as Parent,

 

THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO,

 

as the Subsidiary Guarantors,

 

THE LENDERS FROM TIME TO TIME PARTIES HERETO,

 

as the Lenders,

 

and

 

FORTRESS CREDIT CORP.

as the Administrative Agent

 

U.S. $60,000,000

 

 
1To be Allurion Technologies LLC after giving effect to De-SPAC.
2To be Allurion Technologies Holdings, Inc. after giving effect to De-SPAC.

 

 

 

 

TABLE OF CONTENTS

 

      Page
       
SECTION 1 DEFINITIONS 1
       
  1.01 Certain Defined Terms 1
       
  1.02 Accounting Terms and Principles 35
       
  1.03 Interpretation 36
       
  1.04 Divisions 37
       
  1.05 Times of Day; Times of Performance 37
       
SECTION 2 THE COMMITMENTS AND THE LOANS 37
       
  2.01 Loans 37
       
  2.02 Borrowing Procedures 38
       
  2.03 Notes 38
       
  2.04 Use of Proceeds 38
       
SECTION 3 PAYMENTS OF PRINCIPAL AND INTEREST 38
       
  3.01 Repayments Generally; Application 38
       
  3.02 Interest 38
       
  3.03 Prepayments; Prepayment Fees 39
       
  3.04 Exit Fee 41
       
  3.05 Fee Letter 41
       
SECTION 4 PAYMENTS, ETC. 42
       
  4.01 Payments 42
       
  4.02 Computations 42
       
  4.03 Set-Off 42
       
SECTION 5 YIELD PROTECTION, ETC. 43
       
  5.01 Additional Costs 43
       
  5.02 Illegality 44
       
  5.03 Taxes 45
       
  5.04 Mitigation Obligations. 49
       
SECTION 6 CONDITIONS PRECEDENT 49
       
  6.01 Conditions to the Borrowing of the Loan 49

 

-i-

 

 

TABLE OF CONTENTS

(continued)

 

  Page
SECTION 7 REPRESENTATIONS AND WARRANTIES 55
       
  7.01 Power and Authority 55
       
  7.02 Authorization; Enforceability 55
       
  7.03 Governmental and Other Approvals; No Conflicts 55
       
  7.04 Financial Statements; Material Adverse Change 56
       
  7.05 Properties 56
       
  7.06 No Actions or Proceedings 60
       
  7.07 Compliance with Laws and Agreements 60
       
  7.08 Taxes 61
       
  7.09 Full Disclosure 61
       
  7.10 Investment Company Act and Margin Stock Regulation 62
       
  7.11 Solvency 62
       
  7.12 Equity Holders, Subsidiaries and Other Investments 62
       
  7.13 Secured Indebtedness 62
       
  7.14 Material Agreements 62
       
  7.15 Restrictive Agreements 63
       
  7.16 Real Property 63
       
  7.17 Pension Matters 63
       
  7.18 Priority of Obligations 63
       
  7.19 Regulatory Approvals 63
       
  7.20 Transactions with Affiliates 64
       
  7.21 Sanctions 64
       
  7.22 Anti-Corruption 64
       
  7.23 Deposit and Disbursement Accounts 64
       
  7.24 Royalties and Other Payments 64
       
  7.25 Non-Competes 64
       
  7.26 Internal Controls 64
       
SECTION 8 AFFIRMATIVE COVENANTS 65
       
  8.01 Financial Statements and Other Information 65
       
  8.02 Notices of Material Events 67
       
  8.03 Existence; Conduct of Business 69
       
  8.04 Payment of Obligations 69

 

-ii-

 

 

TABLE OF CONTENTS

(continued)

 

      Page
       
  8.05 Insurance 69
       
  8.06 Books and Records; Inspection Rights 69
       
  8.07 Compliance with Laws and Other Obligations 70
       
  8.08 Maintenance of Properties, Etc. 70
       
  8.09 Licenses 70
       
  8.10 Action under Environmental Laws 70
       
  8.11 Use of Proceeds 70
       
  8.12 Certain Obligations Respecting Subsidiaries; Further Assurances 70
       
  8.13 Patent Prosecution Workplan 72
       
  8.14 Intellectual Property 72
       
  8.15 Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc. 72
       
  8.16 ERISA and Foreign Pension Plan Compliance 73
       
  8.17 Cash Management 73
       
  8.18 Conference Calls 73
       
  8.19 Board Observation Rights 73
       
  8.20 Litigation Cooperation 74
       
  8.21 Post-Closing Covenants 74
       
SECTION 9 NEGATIVE COVENANTS 74
       
  9.01 Indebtedness 74
       
  9.02 Liens 76
       
  9.03 Fundamental Changes, Acquisitions, Etc. 77
       
  9.04 Lines of Business 78
       
  9.05 Investments 78
       
  9.06 Restricted Payments 80
       
  9.07 Payments of Indebtedness 80
       
  9.08 Change in Fiscal Year 81
       
  9.09 Sales of Assets, Etc. 81
       
  9.10 Transactions with Affiliates 82
       
  9.11 Restrictive Agreements 83

 

-iii-

 

 

TABLE OF CONTENTS

(continued)

 

      Page
       
  9.12 Modifications and Terminations of Material Agreements and Organic Documents 83
       
  9.13 Sales and Leasebacks 83
       
  9.14 Hazardous Material 83
       
  9.15 Accounting Changes 84
       
  9.16 [Reserved] 84
       
  9.17 Sanctions; Anti-Corruption Use of Proceeds 84
       
  9.18 Inbound and Outbound Licenses. 84
       
  9.19 Take-Or-Pay Agreements 84
       
  9.20 Passive Holding Company 85
       
SECTION 10 FINANCIAL COVENANTS 85
       
  10.01 Minimum Liquidity 85
       
  10.02 Minimum Revenue 85
       
SECTION 11 EVENTS OF DEFAULT 86
       
  11.01 Events of Default 86
       
  11.02 Remedies 88
       
  11.03 Additional Remedies 89
       
SECTION 12 THE AGENT 89
       
  12.01 Appointment and Duties 89
       
  12.02 Binding Effect 90
       
  12.03 Use of Discretion 90
       
  12.04 Delegation of Rights and Duties 90
       
  12.05 Reliance and Liability 91
       
  12.06 Agent Individually 92
       
  12.07 Lender Credit Decision 92
       
  12.08 Expenses; Indemnities 92
       
  12.09 Resignation of the Agent 93
       
  12.10 Release of Collateral or Guarantors 93
       
  12.11 Additional Secured Parties 94

 

-iv-

 

 

TABLE OF CONTENTS

(continued)

 

  Page
   
SECTION 13 GUARANTEE 94
       
  13.01  The Guarantee 94
       
  13.02 Obligations Unconditional 95
       
  13.03 Reinstatement 95
       
  13.04 Subrogation 96
       
  13.05 Remedies 96
       
  13.06 Instrument for the Payment of Money 96
       
  13.07 Continuing Guarantee 96
       
  13.08 General Limitation on Guarantee Obligations 96
       
SECTION 14 MISCELLANEOUS 97
       
  14.01  No Waiver 97
       
  14.02  Notices 97
       
  14.03  Expenses, Indemnification, Etc. 97
       
  14.04  Amendments, Etc. 99
       
  14.05  Successors and Assigns 99
       
  14.06  Survival 101
       
  14.07 Captions 101
       
  14.08 Counterparts 101
       
  14.09  Governing Law 102
       
  14.10 Jurisdiction, Service of Process and Venue 102
       
  14.11 Waiver of Jury Trial 102
       
  14.12 Waiver of Immunity 102
       
  14.13 Entire Agreement 103
       
  14.14 Severability 103
       
  14.15  No Fiduciary Relationship 104
       
  14.16 Interest Rate Limitation 104
       
  14.17  Early Prepayment Fee; Exit Fee 104
       
  14.18 Judgment Currency 105
       
  14.19  USA PATRIOT Act 105
       
  14.20  Acknowledgement and Consent to Bail-In of EEA Financial Institutions 105

 

-v-

 

 

TABLE OF CONTENTS

 

SCHEDULES AND EXHIBITS  
   
Schedule 1 - Commitments
Schedule 6.01(e) - Excluded Expenses
Schedule 7.05(b) - Products
Schedule 7.05(c) - Material Intellectual Property
Schedule 7.06(a) - Certain Litigation
Schedule 7.06(c) - Labor Matters
Schedule 7.12(a) - Subsidiaries of Parent
Schedule 7.12(b) - Other Equity Interests Owned by Parent or its Subsidiaries
Schedule 7.13 - Existing Secured Indebtedness
Schedule 7.14 - Material Agreements
Schedule 7.15 - Restrictive Agreements
Schedule 7.16 - Real Property
Schedule 7.17 - Pension Matters
Schedule 7.19(b) - Regulatory Approvals
Schedule 7.20 - Transactions with Affiliates
Schedule 7.23 - Deposit and Disbursement Accounts
Schedule 7.24 - Royalties and Other Payments
Schedule 8.20 - Post-Closing Covenants
Schedule 9.01 - Existing Indebtedness
Schedule 9.05 - Existing Investments
Schedule 9.13 - Permitted Sales and Leasebacks
Exhibit A - Form of Note
Exhibit B - Form of Borrowing Notice
Exhibit C - Form of Guaranty Assumption Agreement
Exhibit D-1   - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit D-2 - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit D-3 - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit D-4 - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Assignment and Assumption
Exhibit G - Form of Information Certificate
Exhibit H - Form of Intercompany Subordination Agreement
Exhibit I - Form of Solvency Certificate
Exhibit J - Form of Security Agreement
Exhibit K - Form of Intercreditor Agreement
Exhibit L - Form of Projections

 

-vi-

 

 

CREDIT AGREEMENT AND GUARANTY

 

CREDIT AGREEMENT AND GUARANTY, dated as of [_], 2023 (this “ Agreement”), by and among [__], a Delaware limited liability company (the “Borrower”), [__], a Delaware corporation (“Parent”), certain Subsidiaries of Parent that may be required to provide Guaranties from time to time hereunder, each lender from time to time party hereto (each, a “Lender” and collectively, the “Lenders”), and Fortress Credit Corp., as administrative agent for the Lenders (in such capacity, the “Agent”).

 

WITNESSETH:

 

WHEREAS, the Borrower has requested that the Lenders provide a senior secured term loan facility to the Borrower in an aggregate principal amount of $60,000,000, to be available on the Closing Date, subject to the terms and conditions set forth herein, including the applicable terms and conditions set forth in Section 6 hereof; and

 

WHEREAS, the Lenders are willing, on the terms and subject to the conditions set forth herein, to provide such senior secured term loan facility.

 

NOW, THEREFORE, the parties hereto agree as follows:

 

SECTION 1

DEFINITIONS

 

1.01 Certain Defined Terms. As used herein (including the preamble and recitals), the following terms have the following respective meanings:

 

510(k)” means (i) any premarket notification and corresponding FDA order of substantial equivalence, or 510(k) clearance, for a Device pursuant to the FD&C Act, and FDA regulations, (ii) all substantially equivalent or similar notifications, applications, marketing authorizations and clearances, including CE Mark, with respect to any other non-U.S. Regulatory Authority, including Competent Authorities in Europe, and (iii) all amendments, supplements, letters to file and other additions and modifications thereto, and all documents, data and other information concerning any applicable Device which are necessary for, filed with, incorporated by reference in or otherwise support any of the foregoing.

 

Acquisition” means any transaction, or any series of related transactions, by which any Person directly or indirectly, by means of an amalgamation, consolidation, merger, purchase of Equity Interests or other assets, tender offer, or similar transaction having the same effect as any of the foregoing, (i) acquires all or substantially all of the assets of any other Person, (ii) acquires all or substantially all of a business line or unit or division of any other Person, (iii) with respect to any other Person that is managed or governed by a Board, acquires control of Equity Interests of such other Person representing more than fifty percent (50%) of the ordinary voting power for the control of such Board, determined on a fully-diluted, as-if-converted or exercised basis, or (iv) acquires control of more than fifty percent (50%) of the Equity Interests in any other Person engaged in any business that is not managed by a Board, determined on a fully-diluted, as-if-converted or exercised basis.

 

1

 

 

Additional RTW Royalty Financing Agreement” means that certain Revenue Interest Financing Agreement, between the Borrower and RTW, in the form attached as [Annex A] to the Side Letter, as amended or otherwise modified in accordance with the Intercreditor Agreement.

 

Adverse Regulatory Event” means the occurrence of any of the following events or circumstances:

 

(a) the failure of Parent or any of its Subsidiaries to hold, directly or through licensees or agents, in full force and effect, all Regulatory Approvals necessary or required for Parent or any such Subsidiary to conduct its respective operations and businesses;

 

(b) if required by any applicable Law, the failure of Parent or any of its Subsidiaries to make or file with the FDA or any other applicable Regulatory Authority, in compliance with such applicable Law, any required notice, registration, listing, supplemental application or notification or report;

 

(c) in connection with any clinical, preclinical, safety or other studies or tests being conducted by (or on behalf of) Parent or any of its Subsidiaries for purposes of obtaining regulatory clearance of, or any Regulatory Approval for, any Product or any Product Commercialization and Development Activities (i) the failure of any clinical, pre- clinical, safety or other required trial, study or test to be conducted in material compliance with any applicable Law or Regulatory Approval; (ii) the failure of any related clinical trial site to be monitored in material compliance with all applicable Laws and Regulatory Approvals; or (iii) the receipt by Parent or any of its Subsidiaries of written notice from the FDA or any other Regulatory Authority requiring the termination or suspension of any such clinical, preclinical, safety or other study or test;

 

(d) the Parent or any of its Subsidiaries or, to the knowledge of the Parent, any agent, supplier, licensor or licensee of the Parent or any of its Subsidiaries, receives any written notice with respect to any Product or any Product Commercialization and Development Activities with respect thereto from the FDA or any other Regulatory Authority asserting (i) that such Person lacks a required Regulatory Approval with respect to any Product or Product Commercialization and Development Activity, (ii) a material breach of applicable Laws or Regulatory Approvals (or any similar order, injunction or decree) or (iii) that such Regulatory Authority has commenced any regulatory enforcement action, investigation or inquiry (other than routine or periodic inspections or post- marketing reviews), or has issued a warning letter, with respect to any Product or any Product Commercialization and Development Activities with respect thereto, including, without limitation, any such notice that requires (or is reasonably likely to require or cause) the Parent or any of its Subsidiaries to discontinue, withdraw or recall the marketing or sale of any Product, or requires or causes (or is reasonably likely to require or cause) a cessation or delay in the manufacture or sale of any Product, which discontinuance, withdrawal, recall, cessation or delay will last (or is reasonably expected to last) in excess of sixty (60) days; or

 

(e) with respect to any Product or Product Commercialization and Development Activity of Parent or any Subsidiary, (i) any Regulatory Authority commences any criminal, injunctive, seizure, detention or civil penalty action or (ii) Parent or any Subsidiary enters into any consent decree, plea agreement or other settlement with any Regulatory Authority with respect to any of the foregoing.

 

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Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that with respect to any Lender, an Affiliate of such Lender shall include, without limitation, all of such Lender’s Related Funds. Notwithstanding anything to the contrary contained herein, neither SoftBank Group Corp., nor any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with SoftBank Group Corp., nor any other direct or indirect owners of Fortress Investment Group LLC, shall be considered an Affiliate of Fortress Credit Corp. or of any of its Affiliates.

 

Agent” has the meaning set forth in the preamble hereto.

 

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

 

Applicable Margin” means 6.44% per annum, as such percentage may be increased pursuant to Section 3.02(b).

 

Asset Sale” has the meaning set forth in Section 9.09.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee of such Lender in substantially the form of Exhibit F.

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy.”

 

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

Benefit Plan” means any employee benefit plan as defined in Section 3(3) of ERISA (whether governed by the laws of the United States or otherwise) to which any Obligor or Subsidiary thereof incurs or otherwise has any obligation or liability, contingent or otherwise.

 

3

 

 

Board” means, with respect to any Person, the board of directors (or equivalent management or oversight body) of such Person.

 

Board Observer” has the meaning set forth in Section 8.19.

 

Borrower” has the meaning set forth in the preamble hereto.

 

Borrowing” means the borrowing of the Loans on the Closing Date.

 

Borrowing Notice” means a written notice substantially in the form of Exhibit B.

 

Bridging Agreement” means that certain Bridging Agreement between Fortress Credit Corp. and Allurion Technologies, Inc. dated as of [  ].

 

Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are not authorized or required to close in New York, New York.

 

Capital Lease Obligation” means, as to any Person, any obligation of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligation is required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes of this Agreement, the amount of any such obligation shall be the capitalized amount thereof, determined in accordance with GAAP.

 

Casualty Event” means the damage, destruction, condemnation, confiscation, requisition, seizure or forfeiture, as the case may be, of any property of any Person.

 

Change of Control” means an event or series of events (including any Acquisition) that occurs after the Closing Date and causes or results in any of the following:

 

(i) any Person or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than forty percent (40%) of the Equity Interests of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

 

(ii) during any period of twelve (12) consecutive months, a majority of the members of the Board of Parent cease to be composed of individuals (a) who were members of such Board on the first day of such period, (b) whose election or nomination to such Board was approved by individuals referred to in clause (a) above constituting at the time of such election or nomination at least a majority of such Board or (c) whose election or nomination to such Board was approved by individuals referred to in clauses (a) and (b) above constituting at the time of such election or nomination at least a majority of such Board;

 

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(iii) Parent shall cease to own (a) directly, beneficially and of record or legally, one hundred percent (100%) of the issued and outstanding Equity Interests of the Borrower and (b) directly or indirectly, beneficially and of record or legally, one hundred percent (100%) of the issued and outstanding Equity Interests of each of its other Subsidiaries (other than minority holdings in Subsidiaries that are not U.S. Persons solely in accordance with applicable Law), free and clear of all Liens (other than Permitted Liens) (other than transactions resulting from Asset Sales permitted by Section 9.9);

 

(iv) the sale of all or substantially all of the property or business of Parent and its Subsidiaries, taken as a whole;

 

(v) the occurrence of a “Change of Control” under and as defined in the RTW Royalty Financing Agreement.

 

Claim” means any claim, demand, complaint, grievance, action, application, suit, cause of action, order, charge, indictment, prosecution, judgment or other similar process, assessment or reassessment, whether made, converted or assessed in connection with a debt, liability, dispute, breach, failure or otherwise.

 

Closing Date” means [ ], 2023.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

 

Collateral” means any asset or property in which a Lien is purported to be granted under any Loan Document, including future acquired or created assets or properties (or all such assets or properties, as the context may require), in each case, to secure payment of the Obligations, it being understood and agreed the Collateral is intended to include all collateral granted to RTW to secure obligations of the Borrower under the RTW Royalty Financing Agreement and, to the extent that the Additional RTW Royalty Financing Agreement has been executed by RTW and [Allurion] pursuant to the terms of the Side Letter, the Additional RTW Royalty Financing Agreement.

 

Collateral Triggering Event” means either (i) the occurrence and continuance of an Event of Default or (ii) the failure of the Parent and its Subsidiaries to hold in excess of $15,000,000 in cash in one or more Controlled Accounts (or equivalent in non-U.S. jurisdictions) maintained with one or more commercial banks or similar deposit-taking institutions that are free and clear of all Liens, other than Liens granted under the Loan Documents in favor of the Secured Parties.

 

Commitment” means, with respect to each Lender, the obligation of such Lender to make Loans to the Borrower on the Closing Date subject to satisfaction of the conditions set forth in, and in accordance with the terms and provisions of, this Agreement, which commitments are in the amounts set forth opposite such Lender’s name on Schedule 1 hereto, as such Schedule may be amended from time to time pursuant to an Assignment and Assumption or otherwise; provided that the aggregate Commitments of all Lenders on the Closing Date equal

$60,000,000.

 

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Competitor” means, at any time of determination, any Person that is an operating company directly and primarily engaged in the sale of medical Devices that are the same or substantially the same as the medical Devices being sold by the Borrower as of such time, including, without limitation, any Person that is listed as a competitor in the Parent’s filings with the SEC.

 

Commodity Account” means any commodity account, as such term is defined in Section 9-102 of the NY UCC.

 

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

Contract” means any contract, license, lease, agreement, obligation, promise, undertaking, understanding, arrangement, document, commitment, entitlement, indenture, instrument, or engagement under which a Person has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied, and whether in respect of monetary or payment obligations, performance obligations or otherwise), in each case, other than the Loan Documents.

 

Control” means, in respect of a particular Person, the possession, by one or more other Persons, directly or indirectly, of the power to direct or cause the direction of the management or policies of such particular Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” (and similar derivatives) have meanings correlative thereto.

 

Controlled Account” has the meaning set forth in Section 8.17(a).

 

Convertible Notes” means the Convertible Unsecured Promissory Notes issued by Allurion Technologies, Inc., a Delaware corporation (and predecessor to the Borrower) (the “Issuer”), from time to time pursuant to that certain Convertible Note Purchase Agreement, dated as of December 22, 2021, among the Issuer and the Investors party thereto, as amended, restated, supplemented or otherwise modified from time to time.

 

Copyright” means all copyrights, copyright registrations and applications for copyright registrations, including all renewals and extensions thereof, all rights to recover for past, present or future infringements thereof, and all other rights whatsoever accruing thereunder or pertaining thereto throughout the world.

 

De-SPAC Transaction” means the Mergers (as defined in the De-SPAC Combination Agreement) and each other transaction contemplated by the De-SPAC Combination Agreement.

 

De-SPAC Combination Agreement” means that certain Business Combination Agreement dated as of February [_], 2023, among Compute Health Acquisition Corp., a Delaware corporation, Compute Health Corp., a Delaware corporation, Compute Health LLC, a Delaware limited liability company, Allurion Technologies, Inc., a Delaware corporation, and Allurion Technologies Holdings, Inc., a Delaware corporation, as amended, restated, supplemented or otherwise modified from time to time not in contravention with the terms hereof.

 

6

 

 

Debtor Relief Laws” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

Default” means any Event of Default and any event that, upon the giving of notice, the lapse of time or both, would constitute an Event of Default.

 

Default Rate” has the meaning set forth in Section 3.02(b).

 

Deposit Account” means any deposit account, as such term is defined in Section 9-102 of the NY UCC.

 

Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

 

Device” means any medical instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related item, including any component, part or accessory, that (i) is intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment or prevention of disease, in man or other animals, or is intended to affect the structure or any function of the body of man or other animals, (ii) does not achieve its primary intended purpose or purposes through chemical action within or on the body of man or other animals and (iii) is not dependent upon being metabolized for the achievement of its primary intended purpose or purposes.

 

Device Clearance Application” means any premarket approval application submitted under Section 515 of the FD&C Act (21 U.S.C. § 360e) (a “PMA”), any de novo request submitted under Section 513(f) of the FD&C Act (21 U.S.C. § 360c(f)), or any 510(k) submitted under Section 510(k) of the FD&C Act (21 U.S.C. § 360(k)) seeking approval, authorization or clearance from the FDA for a Device, or any corresponding non-U.S. application in any other non-U.S. jurisdiction, including, with respect to the European Union, any equivalent submission to a Standards Body pursuant to an applicable directive of the European Council with respect to CE marking (or, if applicable, a self-certification of conformity with respect to any such directive through a “declaration of conformity”).

 

Disqualified Equity Interests” means, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security or other Equity Interest into which it is convertible or for which it is exchangeable upon exercise or otherwise), or upon the happening of any event or condition (i) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests of Parent), including pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests of Parent), in whole or in part, (iii) provides for the scheduled payments of dividends or other distributions in cash or other securities that would constitute Disqualified Equity Interests, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is one hundred and eighty (180) days after the Maturity Date; provided that Equity Interests issued pursuant to any plan for the benefit of directors, officers, employees or consultants of such Person, or by any such plan to such directors, officers, employees or consultants, shall not constitute Disqualified Equity Interests solely because such Equity Interests may be required to be repurchased by such Person upon the death, disability, retirement or termination of employment or service of such director, officer, employee or consultant. Notwithstanding the preceding sentence, any Equity Interests that would constitute Disqualified Equity Interests solely because the holders thereof have the right to require the redemption or repurchase of such Equity Interests upon the occurrence of a Change of Control, fundamental change, delisting or an asset sale will not constitute Disqualified Equity Interests if the “asset sale,” “fundamental change”, “delisting” or “Change of Control” provisions applicable to such Equity Interests provide that the issuer thereof will not redeem or repurchase any such Equity Interests pursuant to such provisions prior to all other Obligations (other than contingent indemnification obligations for which no claim has been asserted) having been irrevocably paid in full in cash.

 

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Disqualified Institution” means (a) any hedge fund or private equity fund that principally invests in distressed debt for the purpose of owning equity in the applicable borrower (but may include any Affiliated fund or Person that does not principally invest in distressed debt), and (b) any Persons identified in writing to the Agent prior to the Closing Date and supplemented from time to time after the Closing Date subject to the consent of the Agent (not to be unreasonably withheld); provided that no Lender, Agent or any Affiliate of the foregoing shall constitute a “Disqualified Institution”.

 

Dollars” and “$” means lawful money of the United States of America.

 

Domestic Subsidiary” means any direct or indirect Subsidiary of an Obligor that is a U.S. Person.

 

Early Prepayment Fee” means, with respect to any repayment or prepayment (or other payment made prior to the Maturity Date) of all or any portion of the outstanding principal amount of the Loans on any Prepayment Date, whether pursuant to clause (a) or (b) of Section 3.03 or otherwise (including as a result of acceleration, an Insolvency Proceeding or other Event of Default), an amount equal to (i) for any Prepayment Date that occurs during the Non-Call Period, the applicable Make-Whole Amount and (ii) for any Prepayment Date that occurs after the first anniversary of the Closing Date but on or prior to the Maturity Date: the product of (x) the amount of any principal so prepaid, multiplied by (y) for any Prepayment Date that occurs (A) after the first anniversary of the Closing Date and on or prior to the second anniversary of the Closing Date, two percent (2.0%), (B) after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, one percent (1.0%) and (C) after the third anniversary of the Closing Date, one-half percent (0.5%).

 

EBITDA” means, with respect to any Person (or business), the consolidated earnings of such Person and its consolidated Subsidiaries (or such business) before interest, taxes and non- cash items such as depreciation, depletion and amortization, in each case as determined in accordance with GAAP consistently applied.

 

8

 

 

EBITDA Adjustment” means, as of any time of determination, with respect to any Person or business that (i) has been acquired by the Parent or any of its Subsidiaries pursuant to a Permitted Acquisition and (ii) at the time of consummation of such Permitted Acquisition, had negative EBITDA for the twelve consecutive month period ended on the last day of the most recently ended calendar month prior to the date of such Permitted Acquisition, the product of (x) the amount of such negative EBITDA (expressed as a positive number) multiplied by (y) a fraction having a numerator equal to the number of whole months remaining until the scheduled Maturity Date (determined as of any time of determination) and a denominator equal to twelve (12).

 

EEA Financial Institution” means (i) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (ii) any entity established in an EEA Member Country which is a parent of an institution described in clause (i) of this definition, or (iii) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (i) or (ii) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Eligible Transferee” means (i) any commercial bank, (ii) any insurance company, (iii) any finance company, (iv) any financial institution, (v) any investment fund that invests in loans or other obligations for borrowed money, (vi) with respect to any Lender, any other Lender and/or such Lender’s Affiliates, and (vii) any other “accredited investor” (as defined in Regulation D of the Securities Act) that is principally in the business of managing investments or holding assets for investment purposes.

 

Environmental Law” means any Law or Governmental Approval relating to pollution or protection of the environment or the treatment, storage, disposal, release, threatened release or handling of hazardous materials, and all local laws and regulations, whether U.S. or non-U.S., related to environmental matters and any specific agreements entered into with any competent authorities which include commitments related to environmental matters.

 

Equity Interests” means, with respect to any Person (for purposes of this defined term, an “issuer”), all shares of, interests or participations in, or other equivalents in respect of such issuer’s capital stock, including all membership interests, partnership interests or equivalent, and all debt or other securities (including warrants, options and similar rights) directly or indirectly exchangeable, exercisable or otherwise convertible into, such issuer’s capital stock, whether now outstanding or issued after the Closing Date, and in each case, however classified or designated and whether voting or non-voting.

 

9

 

 

Equivalent Amount” means, with respect to an amount denominated in a single currency, the amount in another currency that could be purchased by the amount in the former currency determined by reference to the Exchange Rate at the time of determination.

 

ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended.

 

ERISA Affiliate” means, collectively, any Obligor, Subsidiary thereof, and any Person under common control, or treated as a single employer, with any Obligor or Subsidiary thereof, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

 

ERISA Event” means (i) a reportable event as defined in Section 4043 of ERISA with respect to a Title IV Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; (ii) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Title IV Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following thirty (30) days; (iii) a withdrawal by any Obligor or any ERISA Affiliate thereof from a Title IV Plan or the termination of any Title IV Plan resulting in liability under Sections 4063 or 4064 of ERISA; (iv) the withdrawal of any Obligor or any ERISA Affiliate thereof in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Obligor or any ERISA Affiliate thereof of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA; (v) the filing of a notice of intent to terminate, the treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Title IV Plan or Multiemployer Plan; (vi) the imposition of liability on any Obligor or any ERISA Affiliate thereof pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the failure by any Obligor or any ERISA Affiliate thereof to make any required contribution to a Plan, or the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Title IV Plan (whether or not waived in accordance with Section 412(c) of the Code) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Title IV Plan or the failure to make any required contribution to a Multiemployer Plan; (viii) the determination that any Title IV Plan is considered an at-risk plan or a plan in endangered to critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (ix) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan; (x) the imposition of any liability under Title I or Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Obligor or any ERISA Affiliate thereof; (xi) an application for a funding waiver under Section 303 of ERISA or an extension of any amortization period pursuant to Section 412 of the Code with respect to any Title IV Plan; (xii) the occurrence of a non-exempt prohibited transaction under Sections 406 or 407 of ERISA for which any Obligor or any Subsidiary thereof may be directly or indirectly liable and which is reasonably expected to result in material liability to any Obligor or any Subsidiary; (xiii) a violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person for which any Obligor or any ERISA Affiliate thereof may be directly or indirectly liable and which is reasonably expected to result in material liability to any Obligor or any Subsidiary; (xiv) the occurrence of an act or omission which could reasonably be expected to give rise to the imposition on any Obligor or any ERISA Affiliate thereof of material fines, penalties, taxes or related charges under Chapter 43 of the Code or under Sections 409, 502(c), (i) or (1) or 4071 of ERISA; (xv) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any Obligor or any Subsidiary thereof in connection with any such Plan; (xvi) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; (xvii) the imposition of any Lien (or the fulfillment of the conditions for the imposition of any Lien) on any of the rights, properties or assets of any Obligor or any ERISA Affiliate thereof, in either case pursuant to Title I or Title IV of ERISA, including Section 302(f) or 303(k) of ERISA or to Section 401(a)(29) or 430(k) of the Code; (xviii) the establishment or amendment by any Obligor or any Subsidiary thereof of any “welfare plan”, as such term is defined in Section 3(1) of ERISA, that provides post-employment welfare benefits in a manner that would materially increase the liability of any Obligor (excluding, for the avoidance of doubt, continued welfare benefits for a limited time of up to 2 years after the termination of employment); or (xix) any Foreign Benefit Event.

 

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ERISA Funding Rules” means the rules regarding minimum required contributions (including any installment payment thereof) to Title IV Plans, as set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

 

Event of Default” has the meaning set forth in Section 11.01.

 

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

 

Exchange Rate” means, as of any date of determination, the rate at which any currency may be exchanged into another currency, as set forth on the relevant Bloomberg screen at or about 11:00 a.m. (New York City time) on such date. In the event that such rate does not appear on the Bloomberg screen, the “Exchange Rate” shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably designated by the Agent.

 

Excluded Account” means, collectively, (i) accounts used exclusively for payroll, the withheld employee portion of payroll taxes and other employee wage and benefit payments, (ii) accounts used exclusively for escrow, trust, or other fiduciary arrangements established in the ordinary course and not in contemplation of this Agreement, (iii) accounts constituting cash collateral accounts subject to Permitted Liens and (iv) de minimis accounts with balances not exceeding $2,000,000 individually at any time or $3,000,000 in the aggregate at any time; provided that no account used for collecting payments from customers, suppliers or clients of any Obligor or any of their Subsidiaries shall constitute an Excluded Account.

 

Excluded Assets” has the meaning set forth in the Security Agreement.

 

Excluded Subsidiary” means, collectively, (i) Immaterial Subsidiaries and (ii) any Subsidiary for which the requirement to provide a Lien, security interest or Guaranty, as the case may be, has been waived by the Agent in accordance with Section 8.12(c), but only for so long as such waiver remains in effect.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes and branch profits Taxes, in each case, (x) imposed by the United States as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivisions thereof) or (y) that are Other Connection Taxes, (ii) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (1) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 5.03(h)) or (2) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.03, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 5.03(f), and (iv) any withholding Taxes imposed under FATCA.

 

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Exclusive License” (and its derivatives) means and refers to any outbound license of Intellectual Property that is exclusive (whether as to use, geography or otherwise) and is not terminable by the licensor at any time upon ninety (90) days’ (or less) prior written notice.

 

Exculpated Party” has the meaning set forth in Section 14.03(b)(ii).

 

FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

FD&C Act” means the U.S. Federal Food, Drug, and Cosmetic Act of 1938 (or any successor thereto), as amended from time to time, and the rules and regulations issued or promulgated thereunder.

 

FDA” means the U.S. Food and Drug Administration and any successor entity.

 

Federal Funds Effective Rate” means, for any day, the greater of (i) the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the Federal Reserve Bank of New York sets forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate and (ii) zero percent (0%).

 

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Fee Letter” means the Fee Letter, dated as of the Closing Date, among Parent, the Borrower and the Agent, as amended or otherwise modified from time to time.

 

Foreign Benefit Event” means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable Law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the incurrence of any liability in excess of $1,500,000 by Parent or any of its Subsidiaries under applicable Law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction that is prohibited under any applicable Law and that could reasonably be expected to result in the incurrence of any liability by Parent or any of its Subsidiaries, or the imposition on Parent or any of its Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable Law, in each case in excess of $1,500,000.

 

Foreign Lender” means a Lender that is not a U.S. Person.

 

Foreign Pension Plan” means any benefit plan that under applicable Law, other than the Laws of the United States or any political subdivision thereof, is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority.

 

Foreign Security Documents” means any pledge, security or other collateral agreement pursuant to which the assets owned by a Foreign Subsidiary or the Equity Interests in such Foreign Subsidiary are made subject to a Lien in favor of the Agent and which is governed by the laws of the jurisdiction in which such Foreign Subsidiary is formed, in each case in form and substance reasonably satisfactory to the Agent and in each case as amended, restated, supplemented or otherwise modified from time to time.

 

Foreign Subsidiary” means any direct or indirect Subsidiary of any Obligor that is not a Domestic Subsidiary of such Obligor.

 

GAAP” means generally accepted accounting principles in the United States, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination. All references to “GAAP” used herein shall be to GAAP applied consistently with the principles used in the preparation of the financial statements delivered pursuant to Section 6.01(d)(i).

 

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Governmental Approval” means any consent, authorization, approval, order, license, franchise, permit, certification, accreditation, registration, clearance, exemption, filing or notice that is issued or granted by or from (or pursuant to any act of) any Governmental Authority, including any application or submission related to any of the foregoing.

 

Governmental Authority” means any nation, government, branch of power (whether executive, legislative or judicial), state, province or municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, monetary, regulatory or administrative functions of or pertaining to government, including without limitation regulatory authorities, governmental departments, agencies, commissions, bureaus, officials, ministers, courts, bodies, boards, tribunals and dispute settlement panels, and other law-, rule- or regulation-making organizations or entities of any state, territory, county, city or other political subdivision of any country, including the FDA and any other agency, branch or other governmental body, whether U.S. or non-U.S., that has regulatory, supervisory or administrative authority or oversight over, or is charged with the responsibility or vested with the authority to administer or enforce, any Healthcare Laws.

 

Guaranty” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation; provided that the term Guaranty shall not include endorsements for collection or deposit in the ordinary course of business.

 

Guaranty Assumption Agreement” means a Guaranty Assumption Agreement substantially in the form of Exhibit C, executed by any entity that, pursuant to Section 8.12 is required to become a “Subsidiary Guarantor”.

 

Guaranteed Obligations” has the meaning set forth in Section 13.01.

 

Hazardous Material” means any substance, element, chemical, compound, product, solid, gas, liquid, waste, by-product, pollutant, contaminant or material which is hazardous or toxic, and includes, without limitation, (i) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof) and (ii) any material classified or regulated as “hazardous” or “toxic” or words of like import pursuant to an Environmental Law.

 

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Healthcare Laws” means, collectively, all applicable Laws, Governmental Approvals, Regulatory Approvals or binding Contracts with any Regulatory Authority applicable to any Product, the ownership or use of any Product or the regulation of any Product Commercialization and Development Activities conducted by or on behalf of Parent or any of its Subsidiaries, whether U.S. or non-U.S., federal, state, local or equivalent, relating to the provision of medical or other professional healthcare services or supplies, billing and collection practices relating to the payment for healthcare services or supplies, insurance laws (including law related to payment for “no-fault” claims) and workers compensation laws as they relate to the provision of, and billing and payment for, the sale or distribution of any such Products, healthcare services, patient healthcare, patient healthcare information, patient abuse, the quality and adequacy of medical care, equipment, personnel, operating policies, fee splitting, including, without limitation, the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)) (the “Federal Anti-Kickback Statute”), the Physician Self-Referral Statute (42 U.S.C. § 1395nn) (the “Stark Law”), the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), criminal False Claims Act (42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286, 287, 1035, 1347 and 1349, and the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. §§ 1320d et seq.), the exclusion law (42 U.S.C. § 1320a- 7), the civil monetary penalties law (42 U.S.C. § 1320a-7a), HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. §§ 17921 et seq.), the Federal Food, Drug & Cosmetic Act (FD&C Act) (21 U.S.C. § 321 et seq.), the Public Health Service Act (PHS Act) (42 U.S.C. § 201 et seq.), all applicable Good Manufacturing Practice requirements addressed in the FDA’s Quality System Regulation (21 C.F.R. Part 820), the Investigational Device Exemption regulation and regulations related to clinical trials (21 C.F.R. Part 812, and Parts 50, 54, and 56), all applicable labeling requirements addressed in FDA’s Device Labeling Regulation (21 C.F.R. Part 801), all statutes, regulations and binding directives of applicable federal healthcare programs, including but not limited to Medicare (Title XVIII of the Social Security Act) and Medicaid (Title XIX of the Social Security Act), any binding collection and reporting requirements relating to applicable federal health care programs and any successor government programs, any rules and regulations promulgated pursuant to the statutes listed herein, and any and all comparable U.S. and non-U.S. Laws and other applicable healthcare laws and regulations.

 

Healthcare Permit” means, with respect to any Person and its ordinary course business activities, any Regulatory Approval (i) issued or required under any Healthcare Laws applicable to such activities of such Person, including activities related to the provision of billing or invoicing for the sale of goods or services regulated or administered under any Healthcare Laws, or (ii) issued to such Person or required to be held by such Person under any Healthcare Laws.

 

Hedging Agreement” means any interest rate exchange agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

 

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Immaterial Subsidiary” means, as of any date of determination, any Foreign Subsidiary of an Obligor (i) the unconsolidated assets of which does not exceed two and a half percent (2.5%) of the consolidated assets of Parent and its consolidated Subsidiaries as set forth in the financial statements most recently delivered pursuant to Sections 6.01, 8.01(b) or 8.01(c), as applicable, and (ii) the unconsolidated revenues of which does not exceed two and a half percent (2.5%) of the consolidated revenues of Parent and its consolidated Subsidiaries as set forth in the financial statements most recently delivered pursuant to Sections 6.01, 8.01(b) or 8.01(c), as applicable; provided that no Subsidiary of the Obligors shall qualify as an Immaterial Subsidiary if (x) the assets or revenue of such Subsidiary taken together with the assets or revenue of all then existing Immaterial Subsidiaries exceeds seven and a half percent (7.5%) of the consolidated assets or revenue, as applicable, of Parent and its consolidated Subsidiaries or (y) such Subsidiary holds or maintains any Regulatory Approval necessary or required for any Product Commercialization and Development Activities, owns or operates any manufacturing or similar facility involved in Product Commercialization and Development Activities, owns or licenses any Material Intellectual Property holds inventory or receivables, books revenue, or has more than ten (10) employees.

 

IDE” means an application, including an application filed with any Regulatory Authority, for authorization to commence human clinical studies with respect to any Device, including (i) an Investigational Device Exemption as defined in the FD&C Act or any successor application or procedure filed with the FDA, (ii) an Investigational Device Exemption for a non- significant risk device as specified in 21 C.F.R. § 812.2(b), (iii) any equivalent of any of the foregoing pursuant to or under any non-U.S. country or regulatory jurisdiction, (iv) all amendments, variations, extensions and renewals of any of the foregoing that may be filed with respect thereto, and (v) all related documents and correspondence thereto, including documents and correspondence with Institutional Review Boards, whether U.S. or non-U.S., or equivalent (an “IRB”).

 

Indebtedness” of any Person means, without duplication:

 

(i) all obligations of such Person for borrowed money;

 

(ii) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments;

 

(iii) [reserved];

 

(iv) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person;

 

(v) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable (a) not overdue by more than one hundred twenty (120) days or (b) disputed in good faith pursuant and for which appropriate reserves are being maintained);

 

(vi) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed;

 

(vii) all Guaranties by such Person of Indebtedness of others;

 

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(viii) all Capital Lease Obligations of such Person;

 

(ix) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty;

 

(x) net obligations under any Hedging Agreement, currency swaps, forwards, futures or derivatives transactions;

 

(xi) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances;

 

(xii) all obligations of such Person in respect of Disqualified Equity Interests; and

 

(xiii) all other obligations required to be classified as indebtedness of such Person under GAAP.

 

The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

 

Indemnified Party” has the meaning set forth in Section 14.03(b)(ii).

 

Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any Obligation and (ii) to the extent not otherwise described in clause (i), Other Taxes.

 

Information Certificate” means an Information and Collateral Certificate, in substantially the form set forth in Exhibit G.

 

Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors (other than Permitted Fundamental Changes), or (ii) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of any Person’s creditors generally or any substantial portion of such Person’s creditors, in each case, undertaken under any Debtor Relief Law.

 

Intellectual Property” means all Patents, Trademarks, Copyrights, and Technical Information, whether registered or not, U.S. or non-U.S., including (without limitation) all of the following:

 

(i) applications, registrations, amendments and extensions relating to such Intellectual Property;

 

(ii) rights and privileges arising under any applicable Laws with respect to such Intellectual Property;

 

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(iii) rights to sue for or collect any damages for any past, present or future infringements of such Intellectual Property; and

 

(iv) rights of the same or similar effect or nature in any jurisdiction corresponding to such Intellectual Property throughout the world.

 

Intercompany Subordination Agreement” means a subordination agreement to be executed and delivered by Parent and each of its Subsidiaries, pursuant to which all obligations in respect of any Indebtedness owing to any such Person by Parent or any of its Subsidiaries shall be subordinated to the prior payment in full in cash of all Obligations, such agreement to be substantially in the form attached hereto as Exhibit H.

 

Intercreditor Agreement” means that certain Intercreditor Agreement, in substantially the form attached hereto as Exhibit K by and between the Agent and RTW and acknowledged and agreed to by the Borrower, as amended or otherwise modified from time to time.

 

Interest Rate” means the sum of (i) the Applicable Margin plus (ii) the greater of (x) the Wall Street Journal Prime Rate as of any day and (y) three percent (3.00%) per annum.

 

Invention” means any novel, non-obvious (or inventive) and useful art, apparatus, method, process, machine (including any article or Device), manufacture or composition of matter, or any novel, non-obvious (or inventive) and useful improvement in any art, method, process, machine (including article or Device), manufacture or composition of matter.

 

Investment” means, for any Person: (i) the acquisition (whether for cash, property, services or securities or otherwise) of Equity Interests, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person or entry into any agreement to make any such acquisition (other than if (x) closing thereunder is contingent upon consent of the Agent or the Majority Lenders or payoff of the Obligations or (y) such agreement is generally cancelable without penalty) (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (ii) the making of any deposit with, or advance, loan, assumption of debt, or other extension of credit to, or capital contribution in any other Person (including the purchase of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person), but excluding any such advance, loan or extension of credit having a term not exceeding one hundred twenty (120) days arising in connection with the sale of services, inventory or supplies by such Person in the ordinary course of business; (iii) the entering into of any Guaranty of, or other contingent obligation with respect to, Indebtedness or other liability of any other Person and (without duplication) any amount committed to be advanced, lent or extended to such Person; or (iv) the entering into of any Hedging Agreement. The amount of an Investment will be determined at the time the Investment is made without giving effect to any subsequent changes in value.

 

IRS” means the U.S. Internal Revenue Service or any successor agency and to the extent relevant, the U.S. Department of the Treasury.

 

Law” means any U.S. or non-U.S. federal, state, provincial, territorial, municipal or local statute, treaty, rule, guideline, regulation, ordinance, code, administrative or judicial precedent or authority, or (solely with respect to Patents) arising under an international convention, including any interpretation or administration thereof by any Governmental Authority or (solely with respect to Patents) international body charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority or (solely with respect to Patents) international body, in each case whether or not having the force of law.

 

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Lenders” has the meaning set forth in the preamble hereto.

 

Lien” means any mortgage, lien, pledge, charge or other security interest, or any lease, title retention agreement, mortgage, restriction, easement, right-of-way, option or adverse claim (of ownership or possession) or other similar encumbrance of any kind or character whatsoever or any preferential arrangement that has the practical effect of creating a security interest.

 

Loan” means the Loans to be made by the Lenders to the Borrower on the Closing Date.

 

Loan Documents” means, collectively, this Agreement, the Notes, the Security Documents, the Fee Letter, any Guaranty Assumption Agreement, any Information Certificate, the Intercompany Subordination Agreement, the Intercreditor Agreement, the Bridging Agreement and any other guaranty, security agreement, subordination agreement, intercreditor agreement or other present or future document, instrument, agreement or certificate identified as a “Loan Document” or otherwise expressly required to be delivered pursuant to a Loan Document or other amendment, waiver or modification of the foregoing, delivered to the Agent or any Lender by or on behalf of (and at the direction or request of) an Obligor in connection with this Agreement (including, without limitation, in connection with Section 8.12) or any of the other Loan Documents, in each case, as amended or otherwise modified from time to time.

 

Loss” means judgments, debts, liabilities, expenses, costs, damages or losses, contingent or otherwise, whether liquidated or unliquidated, matured or unmatured, disputed or undisputed, contractual, legal or equitable, including loss of value, reasonable and documented (in reasonable detail) out-of-pocket professional fees, including reasonable and documented (in reasonable detail) out-of-pocket fees and disbursements of legal counsel on a full indemnity basis, and all reasonable and documented (in reasonable detail) out-of-pocket costs incurred in investigating or pursuing any Claim or any proceeding relating to any Claim.

 

Majority Lenders” means, at any time, Lenders having at such time in excess of fifty percent (50%) of the aggregate Commitments (or, if such Commitments are terminated, the outstanding principal amount of the Loans) then in effect.

 

Make-Whole Amount” means, as of any date of repayment or prepayment (or the date on which such repayment or prepayment was required to be made hereunder) of all or any portion of the outstanding principal amount of the Loans at any time during the Non-Call Period (for purposes of this defined term any such date being an “applicable date”), an amount, determined (without duplication) by the Agent, equal to the greater of (i) 2.00% of the outstanding principal amount of the Loans being so repaid or prepaid on any such applicable date and (ii) the present value as of such applicable date of the sum of (x) 2.00% of the principal amount of the Loans to be so repaid or prepaid on such applicable date as if such amount would otherwise be repaid or prepaid on the last day of the Non-Call Period, plus (y) the amount of all interest that would otherwise have accrued hereunder on the principal amount of the Loans being so repaid or prepaid for the period from such applicable date to the expiration of the Non-Call Period, assuming an interest rate for such period equal to the Interest Rate in effect as of such applicable date for the Loans, computed using a discount rate equal to the Treasury Rate as of such applicable date plus 50 basis points.

 

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Margin Stock” means “margin stock” within the meaning of Regulation U and Regulation X.

 

Material Adverse Change” and “Material Adverse Effect” mean any event, occurrence, fact, development or circumstance that has had, or could reasonably be expected to have, a material adverse change in or effect on (i) the business condition (financial or otherwise), operations, performance or property of Parent and its Subsidiaries taken as a whole, (ii) the ability of any Obligor to perform its obligations under the Loan Documents, as and when due, or (iii) the legality, validity, binding effect or enforceability against any Obligor of any material portion of the Loan Documents to which it is a party, or the rights and remedies available to or conferred upon the Agent or the Lenders under any Loan Document other than, in the case of this clause (iii), solely as a result of any action on the part of the Agent and/or any Lender that is within such Person’s control and does not arise as a result of a breach of any Loan Document by an Obligor.

 

Material Agreement” means (i) each Contract listed on Schedule 7.14, (ii) the RTW Royalty Financing Agreement, (iii) the Additional RTW Royalty Financing Agreement (once entered into), (iv) any Contract providing for the inbound or outbound license of Material Intellectual Property, and (v) any other Contract to which Parent or any of its Subsidiaries is a party or a beneficiary from time to time, or to which any assets or properties of Parent or any of its Subsidiaries are bound (a) the absence or termination of which could reasonably be expected to result in a Material Adverse Effect or (b) without duplication during any period of twelve (12) consecutive months is reasonably expected to, directly or indirectly, (x) result in payments or receipts (including royalty, licensing or similar payments) made to Parent or any of its Subsidiaries in an aggregate amount in excess of $3,000,000, or (y) require payments or expenditures (including royalty, licensing or similar payments) to be made by Parent or any of its Subsidiaries in an aggregate amount in excess of $3,000,000, in each case, as amended, supplemented or otherwise modified from time to time.

 

Material Indebtedness” means (i) Indebtedness pursuant to the RTW Royalty Financing Agreement, (ii) to the extent that the Additional RTW Royalty Financing Agreement has been executed by RTW and [Allurion] pursuant to the terms of the Side Letter, Indebtedness pursuant to the Additional RTW Royalty Financing Agreement, and (iii) any other Indebtedness of Parent or any of its Subsidiaries, the outstanding principal amount of which, individually or in the aggregate, exceeds $1,000,000 (or the Equivalent Amount in other currencies).

 

Material Intellectual Property” means, all Intellectual Property owned by, licensed to or otherwise held by any Obligor (i) necessary for the operation of the business of Parent and its Subsidiaries as currently conducted or as currently anticipated to be conducted, including all current and contemplated Product Commercialization and Development Activities relating to the Products, (ii) the loss of which could reasonably be expected to result in a Material Adverse Effect, or (iii) that has a fair market value in excess of $1,000,000, as determined by the Agent acting reasonably.

 

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Material Regulatory Event” means an Adverse Regulatory Event that, individually or when taken together with each other Adverse Regulatory Event that has occurred since the Closing Date, (i) has resulted in or could reasonably be expected to result in a Material Adverse Effect or (ii) has, or could reasonably be expected to, result in fines, penalties and Losses (including loss of revenue) in excess of $1,500,000.

 

Maturity Date” means June 30, 2027.

 

Medicaid” means that government-sponsored entitlement program under Title XIX, P.L. 89-97 of the Social Security Act, which provides federal grants to states for medical assistance based on specific eligibility criteria, as set forth on Section 1396, et seq. of Title 42 of the United States Code.

 

Medicare” means that government-sponsored insurance program under Title XVIII, P.L. 89-97, of the Social Security Act, which provides for a health insurance system for eligible elderly and disabled individuals, as set forth at Section 1395, et seq. of Title 42 of the United States Code.

 

Minimum Cash Closing Amount” has the meaning set forth in Section 6.01(e).

 

Monthly Amortization Payment” has the meaning set forth in Section 3.01(a). “Multiemployer Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or liability, contingent or otherwise.

 

Net Cash Proceeds”, means, (i) with respect to any Casualty Event experienced or suffered by Parent or any of its Subsidiaries, the amount of cash proceeds received (directly or indirectly) including, without limitation, in the form of insurance proceeds or condemnation awards in respect of such Casualty Event, from time to time by or on behalf of such Person after deducting therefrom only (a) reasonable costs and expenses related thereto incurred by Parent or such Subsidiary in connection therewith, (b) amounts required to be repaid on account of any Permitted Indebtedness (other than the Obligations) secured by a Permitted Lien that is required to be repaid as a result of such Casualty Event, (c) amounts required to be reserved in accordance with GAAP for indemnities and against liabilities associated with the property damaged, destructed or condemned in such Casualty Event, and (d) Taxes (including transfer Taxes or net income Taxes) paid or payable in connection therewith; and (ii) with respect to any Asset Sale by Parent or any of its Subsidiaries, the amount of cash proceeds received (directly or indirectly) from time to time by or on behalf of such Person after deducting therefrom only (a) reasonable costs and expenses related thereto incurred by Parent or such Subsidiary in connection therewith, (b) amounts required to be repaid on account of any Permitted Indebtedness (other than the Obligations) secured by a Permitted Lien that is required to be repaid as a result of such Asset Sale, and (c) Taxes (including transfer Taxes or net income Taxes) paid or payable in connection therewith; provided that, in each case of clauses (i) and (ii), costs and expenses shall only be deducted to the extent, that the amounts so deducted are (X) actually paid or payable to a Person that is not an Affiliate of Parent or any of its Subsidiaries and (Y) properly attributable to such Casualty Event or Asset Sale, as the case may be.

 

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Non-Call Period” means the period from the Closing Date up to and including the first anniversary of the Closing Date.

 

Note” means a promissory note, in substantially the form of Exhibit A hereto, executed and delivered by the Borrower to any Lender in accordance with Section 2.03.

 

NY UCC” means the UCC as in effect from time to time in New York.

 

Obligations” means, all amounts, obligations, liabilities, covenants and duties of every type and description (including all Guaranteed Obligations) owing by any Obligor to any Secured Party, any indemnitee hereunder or any participant, arising out of, under, or in connection with, any Loan Document, whether direct or indirect (regardless of whether acquired by assignment), absolute or contingent, due or to become due, whether liquidated or not, now existing or hereafter arising and however acquired, and whether or not evidenced by any instrument or for the payment of money, including, without duplication, (i) all Loans, (ii) all interest, whether or not accruing after the filing of any petition in bankruptcy or after the commencement of any insolvency, reorganization or similar proceeding, and whether or not a claim for post-filing or post-petition interest is allowed in any such proceeding, and (iii) all other fees, expenses (including, subject to the limitations contained herein and in the other Loan Documents, fees, charges and disbursement of counsel), interest, commissions, charges, costs, disbursements, indemnities and reimbursement of amounts paid and other sums chargeable to such Obligor under any Loan Document.

 

Obligors” means, collectively, Parent, the Borrower and the Subsidiary Guarantors (including any Subsidiary of Parent that becomes a Subsidiary Guarantor after the Closing Date pursuant to Section 8.12), together with their respective successors and permitted assigns.

 

OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

Organic Document” means, for any Person, such Person’s formation documents, including, as applicable its certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of formation, limited liability agreement, operating agreement and all shareholder agreements, voting trusts and similar agreements and arrangements applicable to such Person’s Equity Interests, or any equivalent document of any of the foregoing.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

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Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.03(h)).

 

Participant” has the meaning set forth in Section 14.05(e).

 

Participant Register” has the meaning set forth in Section 14.05(g).

 

Patents” means all patents and patent applications, including (i) the Inventions and improvements described and claimed therein, (ii) patents and patent applications in any form in any worldwide jurisdiction, including but not limited to industrial designs, provisional applications, design patent rights, reissues, reexaminations, substitutions, supplementary protection certificates, divisionals, continuations, continuations-in-part, renewals, extensions, statutory invention registrations, rulings from any governmental authority regarding including ones arising from any proceeding such as Inter Partes review and oppositions, and (iii) all income, royalties, damages and payment now, previously or hereafter due and payable with respect thereto, (iv) all damages and payment for past or future infringements thereof, and rights to sue thereof, and (v) all rights whatsoever pertaining to patents and patent applications accruing thereunder or pertaining thereto throughout the world.

 

Patent Prosecution Allotment” means an amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) during the period from the Closing Date through the Maturity Date designated for the Patent Prosecution Workplan, which Patent Prosecution Allotment shall be funded solely with the proceeds of the Loans.

 

Patent Prosecution Workplan” means a reasonable, business work plan to be jointly developed by the Borrower and the Agent in good faith, such plan to be finalized on or before the first anniversary of the Closing Date, regarding the improvement, development, enhancement and prosecution of the Obligors’ Intellectual Property (including the Material Intellectual Property), which plan shall give consideration to the patent prosecution strategy of the Borrower as in effect on the Closing Date and shall be in the best interests of Parent and its Subsidiaries, taken as a whole (in the joint and reasonable determination of the Borrower and the Agent), as the same may be modified from time to time in writing by mutual agreement of Agent and the Borrower.

 

Patriot Act” has the meaning set forth in Section 14.20.

 

Payment Date” means (i) the last day of each calendar month (provided that if such last day of any calendar month is not a Business Day, then the Payment Date shall be the next succeeding Business Day) and (ii) the Maturity Date.

 

PBGC” means the United States Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

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Permitted Acquisition” means any Acquisition by an Obligor; provided that:

 

(a) immediately prior to, and after giving effect to such Acquisition, (i) all representations and warranties contained in this Agreement and the other Loan Documents that are qualified by materiality, Material Adverse Effect or the like are, in each case, true and correct, (ii) all representations and warranties contained in this Agreement and the other Loan Documents that are not qualified by materiality, Material Adverse Effect or the like are, in each case, true and correct in all material respects, and (iii) no Event of Default shall have occurred and be continuing or could reasonably be expected to result therefrom;

 

(b) all transactions in connection therewith shall be consummated in all material respects in accordance with all applicable Laws;

 

(c) in the case of an Acquisition of Equity Interests of any Person, all of such Equity Interests (except for any such securities in the nature of directors’ qualifying shares required pursuant to any applicable Law) shall be owned by Parent or a wholly- owned, direct or indirect Subsidiary of Parent that is an Obligor, and, in the event of an Acquisition that results in the creation or acquisition of a new Subsidiary of Parent (regardless if such Subsidiary otherwise constitutes an Excluded Subsidiary), unless the Agent otherwise agrees in writing, Parent shall have taken, or caused to be taken, as of the date such Person becomes a Subsidiary of Parent, each of the actions set forth in Section 8.12(a);

 

(d) such Person (in the case of an Acquisition of Equity Interests of such Person) or assets (in the case of an Acquisition of assets or a division of such Person) shall be engaged or used, as the case may be, in businesses or lines of business that would be permitted pursuant to Section 9.04;

 

(e) on a pro forma basis after giving effect to such Acquisition, Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 10;

 

(f) to the extent that the purchase price for any such Acquisition is paid in cash (excluding any cash proceeds received in respect the issuance of any Equity Interests by the Parent or any of its Subsidiaries), the amount thereof, when taken together with the purchase price paid in cash for all other Acquisitions consummated or effected since the Closing Date, does not exceed $5,000,000 in the aggregate (or the Equivalent Amount thereof);

 

(g) the fair market value of all consideration paid in such Acquisition (including any cash proceeds received in respect the issuance of any Equity Interests by the Parent or any of its Subsidiaries), when taken together with the fair market value of all consideration paid in connection with all other Permitted Acquisitions consummated or effected since the Closing Date, shall not exceed the excess of (i) $10,000,000 in the aggregate less (ii) the aggregate amount of all EBITDA Adjustments, provided that for purposes of this clause (g) the determination of fair market value of the consideration paid for any Acquisition shall be inclusive of all Indebtedness assumed in connection therewith, all payments made in connection therewith, whether in the form of Equity Interests, cash or other property or assets, and all deferred purchase price payments, whether in respect of earn-out payments, post-closing adjustments, payments on “seller notes” or otherwise related thereto, in each case to the extent actually paid or reasonably expected to be paid;

 

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(h) to the extent that all or any portion of the purchase price for any such Acquisition is paid in Equity Interests, all such Equity Interests shall be Qualified Equity Interests of Parent;

 

(i) in the case of any Acquisition that has a purchase price in excess of$ 500,000, Parent shall have provided the Agent with at least ten (10) Business Days’ prior written notice of any such Acquisition, together with (i) a copy of the draft purchase agreement related to the proposed Acquisition (and any related documents reasonably requested by the Agent), (ii) to the extent available, quarterly and annual financial statements of the Person whose Equity Interests or assets are being acquired for the twelve (12) month period ending thirty (30) days immediately prior to such Acquisition, including any audited financial statements that are available, (iii) to the extent available, all due diligence conducted by or on behalf of Parent or its applicable Subsidiary, as applicable, prior to such Acquisition; provided that, Agent shall deliver any customary non-reliance letters with respect to the receipt of such diligence, (iv) information regarding any contingent liabilities or prospective research and development costs associated with the Person, business or assets being acquired, and (v) any other information reasonably requested by the Agent and available to the Obligors; and

 

(j) neither Parent nor any of its Subsidiaries shall, in connection with (and upon giving effect to) any such Acquisition, assume or remain liable with respect to, or be subject to (x) any Indebtedness of the related seller or the business, Person or properties acquired, except to the extent permitted pursuant to Section 9.01(g), (y) any Lien on any business, Person or assets acquired, except to the extent permitted pursuant to Section 9.02, or (z) any other liability (including Tax, ERISA and environmental liabilities, but excluding Indebtedness or Liens) in excess of $500,000 in the aggregate since the Closing Date.

 

On or prior to the proposed date of any such Acquisition, the Agent shall have received a certificate of a Responsible Officer of Parent (prepared in reasonable detail), certifying that the Acquisition complies with the requirements of this definition, and which certificate shall include a summary (prepared in reasonable detail), certifying as to any contingent liabilities and prospective research and development costs associated with the Person, business or assets being acquired. In addition, to the extent the Person or business being acquired had negative EBITDA for the twelve consecutive month period ended on the last day of the most recently ended calendar month prior to the date of such Acquisition, the Parent shall provide the Agent with projections and a business plan, each prepared in reasonable detail satisfactory to the Agent, describing the Parent’s plan for making such acquired Person or business EBITDA positive.

 

Permitted Cash Equivalent Investments” means (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any state thereof having maturities of not more than one year from the date of acquisition, (ii) commercial paper maturing no more than two hundred and seventy (270) days after the date of its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc., (iii) certificates of deposit maturing no more than 180 days after issued or guaranteed by or placed with any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000, provided that the account in which any such certificate of deposit is maintained is subject to a control agreement in favor of the Agent, (iv) money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (B) are rated AAA and Aaa (or equivalent rating) by at least two credit rating agencies and (C) have portfolio assets of at least $5,000,000, and (v) registered money market funds at least ninety-five percent (95.0%) of the assets of which constitute Permitted Cash Equivalent Investments of the kinds described in clauses (i) through (iv) above.

 

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Permitted Fundamental Changes” means transactions permitted under Section 9.03 or other transactions as may be expressly permitted or consented to from time to time in accordance with Section 14.04.

 

Permitted Indebtedness” means any Indebtedness permitted under Section 9.01 or other Indebtedness as may be expressly permitted or consented to from time to time in accordance with Section 14.04.

 

Permitted Licenses” means (A) inbound licenses of over-the-counter software that is commercially available to the public and are used by Parent or any of its Subsidiaries in the ordinary course of business, and (B) outbound non-exclusive and exclusive licenses for the use of the Intellectual Property of Parent or any of its Subsidiaries for Product Commercialization and Development Activities outside the United States and it territories entered into in the ordinary course of business; provided, that, with respect to each such license described in clause (B), (i) such license has been entered into pursuant to or in accordance with, and the terms of such license do not otherwise conflict with, the Patent Prosecution Workplan, (ii) it has been entered into on an arm’s-length basis, on commercially reasonable terms and in the ordinary course of business, (iii) to the extent such Intellectual Property constitutes Collateral, does not prevent or impair the ability of the Agent or the Lenders from fully exercising their rights under any of the Loan Documents in the event of a disposition or liquidation (including in connection with a foreclosure) of the rights, assets or properties that are the subject of such license, (iv) Parent shall provide ten (10) Business Days’ prior written notice and a reasonably detailed summary of the terms of the proposed license to the Agent and shall deliver to the Agent copies of the final executed licensing documents in connection with the exclusive license promptly upon the effectiveness thereof, (v) such license shall not result in a legal transfer of title of the licensed property, (vi) such license is not perpetual; and (vii) all upfront payments, royalties, milestone payments or other proceeds arising from the licensing agreement that are payable to Parent or any of its Subsidiaries are paid to a Controlled Account.

 

Permitted Liens” means any Liens permitted under Section 9.02 or other Liens as may be expressly permitted or consented to from time to time in accordance with Section 14.04.

 

Permitted Refinancing” means, with respect to any Indebtedness not prohibited from being refinanced, extended, renewed or replaced hereunder, any refinancings, extensions, renewals and replacements of such Indebtedness; provided that such refinancing, extension, renewal or replacement (A) shall be incurred by the same obligor as the Indebtedness being so refinanced and (B) shall not (i) increase the outstanding principal amount of the Indebtedness being refinanced, extended, renewed or replaced (provided that the final maturity date of such Indebtedness shall be on or after the final maturity of the Indebtedness being refinanced and the Weighted Average Life to Maturity of such Indebtedness shall be greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced), (ii) contain terms relating to outstanding principal amount, amortization, maturity, collateral security (if any) or subordination (if any), or other material terms that are less favorable in any material respect to Parent and its Subsidiaries or the Secured Parties than the terms of any agreement or instrument governing the Indebtedness being refinanced, extended, renewed or replaced, (iii) have an applicable interest rate or equivalent yield that exceeds the interest rate or equivalent yield of the Indebtedness being refinanced, extended, renewed or replaced, (iv) require or result in any Lien that is not a Permitted Lien, or (v) contain any new requirement to give Guaranties that was not an existing requirement of the Indebtedness being refinanced, extended, renewed or replaced; provided further that after giving effect to such refinancing, extension, renewal or replacement, no Default or Event of Default shall have occurred and be continuing (or could reasonably be expected to immediately occur) as a result thereof.

 

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Permitted Tax Distributions” means, with respect to any Obligor or any of its Subsidiaries which is a member of an affiliated group (consisting of only the Obligors and their Subsidiaries) filing consolidated, combined, unitary or similar tax returns of which such Obligor or Subsidiary is not the common parent, an amount with respect to any taxable year no greater than the corresponding Tax liabilities of the common parent of such affiliated group (including, without limitation, federal, state, and local income, franchise, sales, use, or similar Taxes) to the extent attributable to such Obligor or such Subsidiary.

 

Person” means any individual, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature.

 

PIPE Agreement” means the Subscription Agreements to be entered into by and between Parent and each of the investors counterparty thereto.

 

PIPE Transaction” means the acquisition by RTW and the other investors party to the PIPE Agreements of common stock of the Parent in a private placement, to occur in connection with the De-SPAC Transaction and the transactions contemplated by this Agreement, resulting in net cash proceeds to the Parent (which shall be contributed to the Borrower).

 

Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Prepayment Date” means any Business Day on which the Borrower (i) elects to optionally prepay or (ii) is required to prepay, in each case, all or any portion of the outstanding principal amount of the Loans pursuant to Section 3.03(a) or Section 3.03(b), respectively.

 

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Prepayment Price” has the meaning set forth in Section 3.03(a)(i).

 

Proceeding” has the meaning set forth in Section 14.03(b)(ii).

 

Product” means all medical products (including medical Devices) of the Parent and its Subsidiaries that have been, or are in the process of being, developed, distributed, imported, exported, labeled, promoted, licensed, marketed, sold or otherwise subject to Product Commercialization and Development Activities by or on behalf of the Parent or any of its Subsidiaries at any time, including by way of an outbound license or similar arrangement to a third party for Product Commercialization and Development Activities.

 

Product Commercialization and Development Activities” means, with respect to any Product, any combination of (i) research, development, manufacturing, quality compliance, use, sale, licensing, importation, exportation, shipping, storage, handling, designing, labeling, marketing, promotion, supply, dispensing, distribution, testing, packaging, purchasing or other commercialization activity, (ii) receipt of payment or other remuneration in respect of any of the foregoing (including, without limitation, in respect of licensing, royalty or similar payments) or (iii) any similar or other activities the purpose of which is to commercially exploit such Product.

 

Product Related Information” means, with respect to any Product, all books, records, lists, ledgers, files, manuals, Contracts, correspondence, reports, plans, drawings, data and other information of every kind (in any form or medium), including related to Intellectual Property, and all techniques and other know-how, that is necessary or useful for any Product Commercialization and Development Activities relating to such Product, including (i) branding materials, packaging and other marketing, promotion and sales materials and information, (ii) clinical data, information included or supporting any Regulatory Approval and all other documents, records, files, data and other information relating to Product Commercialization and Development Activities, (iii) litigation and dispute records, and accounting records, and (iv) all other information, techniques and know-how necessary or useful in connection with the Product Commercialization and Development Activities for any Product.

 

Product Standards” means all safety, quality and other specifications and standards applicable to any Product, including all medical device and other standards promulgated by Standards Bodies.

 

Prohibited Payment” means any bribe, rebate, payoff, influence payment, kickback or other payment or gift of money or anything of value (including meals or entertainment) to any officer, employee or ceremonial office holder of any government or instrumentality thereof, political party or supra-national organization (such as the United Nations), any political candidate, any royal family member or any other person who is connected or associated personally with any of the foregoing that is prohibited under any applicable Law for the purpose of influencing any act or decision of such payee in such payee’s official capacity, inducing such payee to do or omit to do any act in violation of such payee’s lawful duty, securing any improper advantage or inducing such payee to use such payee’s influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

 

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Projections” means a written projection of the revenues and expenses of the Parent and its Subsidiaries, on a quarterly basis, including projected revenues, EBITDA, and capital expenditures, substantially in the form attached hereto as Exhibit L; provided that the same shall be submitted to the Agent in Excel (and not .pdf or another) format.

 

Proportionate Share” means, with respect to each Lender, the percentage obtained by dividing (i) the sum of all Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of such Lender then in effect by (ii) the sum of all Commitments (or, if the Commitments are terminated, the outstanding principal amount of the Loans) of all Lenders then in effect.

 

Qualified Equity Interest” means, with respect to any Person, any Equity Interest of such Person that is not a Disqualified Equity Interest.

 

Qualified Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was ever obligated to make, contributions, and (ii) that is intended to be tax qualified under Section 401(a) of the Code.

 

Real Property Security Documents” means any landlord consents, bailee letters, any mortgage or deed of trust or any other real property security document executed or required hereunder to be executed by any Obligor and granting a security interest in real property owned or leased (as tenant) by any Obligor in favor of the Secured Parties for purposes of securing the Obligations, in each case, as amendment, supplemented or otherwise modified from time to time.

 

Recipient” means any Lender, the Agent or any other recipient of any payment to be made by or on account of any Obligation, as applicable.

 

Referral Source” has the meaning set forth in Section 7.07(c).

 

Refinanced Debt” means Indebtedness of the Borrower outstanding pursuant to that certain Amended and Restated Loan and Security Agreement, dated as of December 30, 2021, among the Borrower (or any predecessor thereof), the lenders from time to time party thereto, and Runway Growth Finance Corp., as administrative agent for such lenders, as amended or otherwise modified from time to time.

 

Register” has the meaning set forth in Section 14.05(d).

 

Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System, as amended.

 

Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as amended.

 

Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System, as amended.

 

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Regulatory Approval” means, with respect to any Product or Product Commercialization and Development Activities, any Healthcare Permit or other Governmental Approval, whether U.S. or non-U.S., that is required to be held or maintained by, or for the benefit of, Parent, the Borrower or any of their respective Subsidiaries with respect thereto, including all applicable IDEs, PMAs, 510(k)s, Device Clearance Applications, Product Standards, and similar applications, pre-approvals and post-approvals, governmental pricing approvals, reimbursement approvals and approvals of applications for regulatory exclusivity, clearances, licenses, notifications, registrations or authorizations of any Regulatory Authority, in each case necessary for the ownership, use or other commercialization of such Product or for any such Product Commercialization and Development Activities.

 

Regulatory Authority” means any Governmental Authority, whether U.S. or non-U.S., that is concerned with or has regulatory or supervisory oversight with respect to any Product or any Product Commercialization and Development Activities relating to any Product, including the FDA and all equivalent Governmental Authorities, whether U.S. or non-U.S.

 

Related Fund” means, with respect to any Lender, a fund which is managed or advised by the same investment manager or investment adviser as such Lender or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of such Lender.

 

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer” of any Person means each of the president, chief executive officer, chief financial officer and similar officer of such Person.

 

Restricted Payment” means any dividend or other distribution (whether in cash, Equity Interests or other property) with respect to any Equity Interests of Parent or any of its Subsidiaries, any payment of interest, principal or fees in respect of any Indebtedness owed by Parent or any of its Subsidiaries, to any holder of any Equity Interests of Parent or any of its Subsidiaries, or any payment (whether in cash, Equity Interests or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of Parent or any of its Subsidiaries, or any option, warrant or other right to acquire any such Equity Interests of Parent or any of its Subsidiaries.

 

Restrictive Agreement” means any Contract or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Parent or any of its Subsidiaries to create, incur or permit to exist any Lien upon any of its properties or assets to secure the Obligations (other than (x)(1) customary provisions in Contracts (including without limitation leases and licenses of Intellectual Property) restricting the assignment thereof, and (2) customary restrictions and conditions contained in asset sale agreements, purchase agreements, acquisition agreements (including by way of merger, acquisition or consolidation) solely to the extent that (A) are only in effect pending consummation of the acquisition or sale contemplated pursuant to such agreement and (B) such restrictions or conditions (I) require Parent or any of its Subsidiaries to conduct its business in the ordinary course of business (with respect to such assets or businesses) consistent with historic practices or (II) are only in effect (with respect to such assets or businesses) pending the consummation of such transaction; provided that such restrictions and conditions apply only to the assets or property subject to such transaction (or, if applicable, the conduct of business of Parent or such Subsidiaries with respect to such assets or businesses) and that such sale is permitted or, in the case of the sale of the Borrower or any other Change of Control, such agreement contemplates the repayment in full of the Obligations hereunder, and (y) restrictions or conditions imposed by any Contract governing secured Permitted Indebtedness permitted under Section 9.01(e), to the extent that such restrictions or conditions apply only to the property or assets securing such Indebtedness), or (ii) the ability of Parent or any of its Subsidiaries to make Restricted Payments with respect to any of their respective Equity Interests or to make or repay loans or advances to Parent or any of its Subsidiaries or such other Obligor or to Guaranty Indebtedness of Parent or any of its Subsidiaries.

 

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Revenue” means, for any applicable fiscal period, consolidated total gross revenues of the Parent and its Subsidiaries for such fiscal period resulting from Product Commercialization and Development Activities in the ordinary course of business, as recognized on the income statement of Parent and its Subsidiaries for such fiscal period, determined on a consolidated basis in accordance with GAAP, less the sum of (i) all discounts and allowances (including chargebacks, shelf stock adjustments and allowances), (ii) amounts repaid or credited by reason of rejection, returns or recalls, rebates or bona fide price reductions, (iii) rebates and similar payments actually made with respect to sales paid for by Federal or state Medicaid, Medicare or similar U.S. or non-US governmental programs, (iv) excise Taxes, customs duties, customs levies and import fees imposed on the sale, importation, use or distribution of any Products and (v) all one-time, extraordinary or non-recurring payments of any type or nature, in each case to the extent included in the computation of consolidated total gross revenues of the Parent and its Subsidiaries for such fiscal period.

 

RTW” means, collectively or individually, as the context requires, [RTW Master Fund, Ltd., RTW Innovation Master Fund, Ltd., RTW Venture Fund Limited and/or RTW Investments, LP, as agent for the foregoing], and each of their successors and assigns.

 

RTW Royalty Financing Agreement” means the Revenue Interest Financing Agreement, dated as of February [_], 2023, between the Borrower and RTW, as amended or otherwise modified in accordance with the Intercreditor Agreement.

 

Sanction” means any international economic sanction administered or enforced by the United States government (including, without limitation, OFAC), the United Nations Security Council, the European Union or its Member States, Her Majesty’s Treasury or other relevant sanctions authority.

 

Schedule 6.01(e) Fees” means, as the context may require, any of those fees, costs and expenses incurred or anticipated to be incurred by or on behalf of the Borrower in connection with the consummation of the Transactions and set forth on Schedule 6.01(e).

 

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Secured Party” means each Lender, the Agent, each other Indemnified Party, any other holder of any Obligation, and any of their respective permitted transferees or assigns.

 

Securities Account” means any securities account, as such term is defined in Section 8- 501 of the NY UCC.

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

Security Agreement” means the Security Agreement, in substantially the form set forth in Exhibit J dated as of the Closing Date, among the grantors party thereto (including Parent and the Borrower) and the Agent, granting a security interest in such grantor’s personal property in favor of the Agent, as amended or otherwise modified from time to time.

 

Security Documents” means, collectively, the Security Agreement, each Real Property Security Document, each Short-Form IP Security Agreement, each Foreign Security Document, and each other security agreement, control agreement or financing statement, registration, recordation, filing, instrument or approval required, entered into or recommended to grant, perfect and otherwise render enforceable Liens in favor of the Secured Parties for purposes of securing the Obligations, including (without limitation) pursuant to Section 8.12, in each case, as amended or otherwise modified from time to time.

 

Short-Form IP Security Agreements” means short-form copyright, patent or trademark (as the case may be) security agreements, substantially in the form Exhibit C, Exhibit D or Exhibit E to the Security Agreement (or otherwise in form and substance reasonably satisfactory to the Agent), entered into by one or more Obligors in favor of the Secured Parties, each as amended or otherwise modified from time to time.

 

Side Letter” means that certain letter agreement, dated [      ], 2023 (as amended, modified, restated, amended and restated, replaced or supplemented from time to time in accordance with the Intercreditor Agreement), whereby, among other things, RTW may make a single election in certain circumstances to convert up to $7,500,000 of the purchase price that it paid for certain equity interests in Parent into an amount of financing provided by RTW to [Allurion] pursuant to the Additional RTW Royalty Financing Agreement.

 

Solvent” means, with respect to any Person at any time, that (i) the present fair saleable value of the property of such Person is greater than the total amount of liabilities (including contingent liabilities) of such Person, (ii) the present fair saleable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured in the ordinary course, and (iii) such Person has not incurred and does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s (or such group of Persons’) ability to pay as such debts and liabilities as they mature in the ordinary course.

 

Specified Asset Sale” means any Asset Sale of the type described in any of clauses (d) (l) of Section 9.09.

 

Specified Projections” means the Projections attached hereto as Exhibit L.

 

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Specified Subsidiary” means any direct or indirect Subsidiary of the Parent that (i) after the occurrence of a Collateral Triggering Event is designated by the Agent (in its sole discretion by way of written notice to the Parent) to be a “Specified Subsidiary”, and (ii) was not an Obligor prior to such designation.

 

Standards Bodies” means any of the organizations that create, sponsor or maintain safety, quality or other standards, including ISO, ANSI, CEN and SCC and the like.

 

Subsidiary” means, with respect to any Person (for purposes of this definition, the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (i) of which securities or other ownership interests representing more than fifty percent (50%) of the equity or more than fifty percent (50%) of the ordinary voting power or, in the case of a partnership, more than fifty percent (50%) of the general partnership interests are, as of such date, owned, controlled or held, directly or indirectly or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more direct or indirect subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Parent.

 

Subsidiary Guarantor” means, (i) initially as of the Closing Date, each Subsidiary of Parent identified under the caption “SUBSIDIARY GUARANTORS” on the signature pages hereto and, thereafter, (ii) each Subsidiary of Parent that becomes, or is required to become, a “Subsidiary Guarantor” after the Closing Date pursuant to Section 8.12, in each case of clauses (i) and (ii), other than an Immaterial Subsidiary.

 

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Technical Information” means all Product Related Information, including clinical data and any information submitted to a regulatory authority to obtain approvals, all trade secrets, invention disclosures and other proprietary or confidential information, public information, non- proprietary know-how, any information of a scientific, technical, or commercial nature related to any Product Commercialization and Development Activities, any information of business nature in any form or medium, standards and specifications, conceptions, ideas, innovations, discoveries, Invention disclosures, all documented research, developmental, demonstration or engineering work and all other information, data, plans, specifications, reports, summaries, experimental data, processes, formulae, methods, manuals, models, samples, know-how, technical information, systems, methodologies, computer programs, information technology and any other information.

 

Title IV Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (i) that is or was at any time maintained or sponsored by any Obligor or any ERISA Affiliate thereof or to which any Obligor or any ERISA Affiliate thereof has ever made, or was obligated to make, contributions, and (ii) that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.

 

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Trademarks” means all trade names, service names, trademarks and service marks, logos, trademark and service mark registrations, and applications for trademark and service mark registrations, including (i) all renewals of trademark and service mark registrations, (ii) all rights to recover for all past, present and future infringements thereof and all rights to sue therefor, and (iii) all rights whatsoever accruing thereunder or pertaining thereto throughout the world, together, in each case, with the goodwill of the business connected with the use thereof.

 

Transactions” means the negotiation, preparation, execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is (or is intended to be) a party, the making of the Loans hereunder, the repayment of the Refinanced Debt, the consummation of the PIPE Transaction, the De-SPAC Transaction, and the transactions contemplated by the RTW Royalty Financing Agreement and the Side Letter, and all other transactions contemplated pursuant to this Agreement and the other Loan Documents.

 

Treasury Rate” means, for the purpose of calculating any Make-Whole Amount, the yield to maturity implied by the yield(s) for the most recently issued actively traded on-the-run U.S. Treasury securities as quoted on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets as of approximately 5:00 p.m. (New York City time) on the second Business Day immediately preceding the date of any repayment or prepayment that is the subject of such Make-Whole Amount, in respect of that period which is mathematically closest in duration to the actual period over which such determination is to be assessed for the purposes of making a present value calculation. The Bloomberg quotation of the US Treasury Rate as at the close of business in New York on the day before any determination is made shall be used and shall be final in the absence of manifest or demonstrable error.

 

UCC” means, with respect to any applicable jurisdictions, the Uniform Commercial Code as in effect in such jurisdiction, as may be modified from time to time.

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

United States” or “U.S.” means the United States of America, its fifty (50) states and the District of Columbia.

 

U.S. Person” means a “United States person” as defined in Section 7701(a)(30) of the Code.

 

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U.S. Tax Compliance Certificate” has the meaning set forth in Section 5.03(f)(ii)(B)(3).

 

Wall Street Journal Prime Rate” means the Wall Street Journal Prime Rate, as published and defined in The Wall Street Journal.

 

Weighted Average Life to Maturity” means, when applied to any Indebtedness on any date, the number of years obtained by dividing: (i) the sum of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (ii) then outstanding principal amount of such Indebtedness.

 

Withdrawal Liability” means, at any time, any liability incurred (whether or not assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such time with respect to any Multiemployer Plan pursuant to Section 4201 of ERISA.

 

Withholding Agent” means any of the Borrower, any other Obligor or the Agent.

 

Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

1.02 Accounting Terms and Principles. Unless otherwise specified, all accounting terms used in each Loan Document shall be interpreted, and all accounting determinations and computations thereunder (including under Section 10 and any definitions used in such calculations) shall be made, in accordance with GAAP. Unless otherwise expressly provided, all financial covenants and defined financial terms shall be computed on a consolidated basis for Parent and its Subsidiaries, in each case without duplication. If Parent or the Borrower requests an amendment to any provision hereof to eliminate the effect of (a) any change in GAAP or the application thereof or (b) the issuance of any new accounting rule or guidance or in the application thereof, in either case, occurring after the Closing Date, then the Lenders, Parent and the Borrower agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such change or issuance with the intent of having the respective positions of the Lenders, Parent and the Borrower after such change or issuance conform as nearly as possible to their respective positions as of the Closing Date and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be calculated as if no such change or issuance has occurred and (ii) Parent and the Borrower shall provide to the Lenders a written reconciliation in form and substance reasonably satisfactory to the Lenders, between calculations of any baskets and other requirements hereunder before and after giving effect to such change or issuance. Notwithstanding anything herein to the contrary, for purposes of Section 9 hereof and any other negative covenant in the Loan Documents (but not, for the avoidance of doubt any financial reporting obligations under the Loan Documents), with respect to the accounting for leases as either operating leases or capital leases and the impact of such accounting in accordance with FASB ASC 842 on the definitions and covenants contained herein, GAAP as in effect on December 31, 2018, shall be applied.

 

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1.03 Interpretation. For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires,

 

(a) the terms defined in this Agreement include the plural as well as the singular and vice versa;

 

(b) words importing gender include all genders;

 

(c) any reference to a Section, Annex, Schedule or Exhibit refers to a Section of, or Annex, Schedule or Exhibit to, this Agreement;

 

(d) any reference to “this Agreement” refers to this Agreement, including all Annexes, Schedules and Exhibits hereto, and the words herein, hereof, hereto and hereunder and words of similar import refer to this Agreement and its Annexes, Schedules and Exhibits as a whole and not to any particular Section, Annex, Schedule, Exhibit or any other subdivision;

 

(e) references to days, months and years refer to calendar days, months and years, respectively;

 

(f) all references herein to “include” or “including” shall be deemed to be followed by the words “without limitation”;

 

(g) the word “from” when used in connection with a period of time means “from and including” and the word “until” means “to but not including”;

 

(h) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer broadly to any and all assets and properties, whether tangible or intangible, real or personal, including cash, securities, rights under contractual obligations and permits and any right or interest in any such assets or properties;

 

(i) accounting terms not specifically defined herein (other than “property” and “asset”) shall be construed in accordance with GAAP;

 

(j) where any provision in this Agreement or any other Loan Document refers to an action to be taken by any Person, or an action which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly;

 

(k) the word “will” shall have the same meaning as the word “shall”;

 

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(l) references to any Lien granted or created hereunder or pursuant to any other Loan Document securing any Obligations shall be deemed to be a Lien for the benefit of the Secured Parties; and

 

(m) references to any Law will include all statutory and regulatory provisions amending, consolidating, replacing, supplementing or interpreting such Law from time to time.

 

Unless otherwise expressly provided herein, references to organizational documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto permitted by the Loan Documents.

 

If any obligation to pay any amount pursuant to the terms and conditions of any Loan Document falls due on a day which is not a Business Day, then such required payment date shall be extended to the immediately following Business Day.

 

1.04 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (i) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (ii) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

 

1.05 Times of Day; Times of Performance.

 

(a) Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

(b) If any delivery or other performance obligation hereunder (other than payments) falls due on a day which is not a Business Day, then such due date shall be extended to the immediately following Business Day.

 

SECTION 2

THE COMMITMENTS AND THE LOANS

 

2.01 Loans.

 

(a) On the terms and subject to the conditions of this Agreement, each Lender agrees to make the Loan to the Borrower, in a single Borrowing on the Closing Date, in an aggregate principal amount for all Lenders of $60,000,000 in immediately available funds.

 

(b) No amounts repaid or prepaid with respect to any Loan may be reborrowed.

 

(c) Any term or provision hereof (or of any other Loan Document) to the contrary notwithstanding, Loans made hereunder will be denominated solely in Dollars, and all Loans and other Obligations will be repayable solely in Dollars and no other currency.

 

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2.02 Borrowing Procedures. At least three (3), but not more than fifteen (15) Business Day(s) prior to the Borrowing on the Closing Date, the Borrower shall deliver to the Agent an irrevocable Borrowing Notice, which notice, if received by the Agent on a day that is not a Business Day or after 12:00 noon (New York City time) on a Business Day, shall be deemed to have been delivered on the next Business Day.

 

2.03 Notes. If requested by any Lender, any Loan of such Lender shall be evidenced by one or more Notes. The Borrower shall prepare, execute and deliver to the Lender such Notes in the form attached hereto as Exhibit A.

 

2.04 Use of Proceeds. The Borrower shall use the proceeds of the Loans for purposes of (i) the repayment in full of the Refinanced Debt on the Closing Date, (ii) working capital and general corporate purposes, and (iii) without duplication, the payment of fees and expenses associated with this Agreement and the other Loan Documents and the transactions contemplated hereby and thereby, it being understood and agreed that the Patent Prosecution Allotment (or such less Loan amount agreed with the Agent) shall be applied to patent prosecution, development and enhancement in accordance with the Patent Prosecution Workplan.

 

SECTION 3

PAYMENTS OF PRINCIPAL AND INTEREST

 

3.01 Repayments Generally; Application.

 

(a) There will be no scheduled repayments of principal on the Loans prior to the third anniversary of the Closing Date. Thereafter, on each Payment Date occurring prior to the Maturity Date, the Borrower shall make a payment of principal on the aggregate outstanding principal balance of the Loans in an amount equal to one twenty-fourth (1/24th) of the aggregate principal amount of the Loans outstanding as of the time immediately prior to the first payment required pursuant to this clause (a) (each such payment being a “Monthly Amortization Payment”).

 

(b) The Borrower agrees that all amounts payable hereunder or under any other Loan Document, in respect of any Loans, fees or interest accrued or accruing thereon, or any other Obligations, shall be repaid and prepaid solely in Dollars. Except as otherwise provided in this Agreement, proceeds of each payment (including each repayment and prepayment of Loans) by or on behalf of the Borrower shall be deemed to be made ratably to the Lenders in accordance with their respective Proportionate Shares of the Loans being repaid or prepaid.

 

3.02 Interest.

 

(a) Interest Generally. The outstanding principal amount of the Loans, as well as the amount of all other outstanding Obligations, shall accrue interest at the Interest Rate on and from the Closing Date. The Agent’s determination of the Interest Rate shall be binding on the Borrower, its Subsidiaries and the Lenders in the absence of manifest or demonstrable error.

 

(b) Default Interest. Notwithstanding the foregoing, (i) upon the occurrence and during the continuance of any Event of Default described in clauses (a), (b), and (h) of Section 11.01, and (ii) upon notice from the Agent upon the occurrence and during the continuance of any other Event of Default, the Applicable Margin shall increase automatically by three percent (3.0%) per annum (the Interest Rate, as increased pursuant to this Section 3.02(b), being the “Default Rate”). If any Obligation is not paid when due under any applicable Loan Document, the amount thereof shall accrue interest at the Default Rate.

 

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(c) Interest Payment Dates. Accrued interest on the Loans shall be payable in cash, in arrears, on each Payment Date, and upon the payment or prepayment of the Loans (on the principal amount being so paid or prepaid); provided that interest payable at the Default Rate, or any accrued interest not paid on or before the Maturity Date, shall be payable from time to time in cash on demand by the Agent until paid in full.

 

3.03 Prepayments; Prepayment Fees.

 

(a) Optional Prepayments.

 

(i) Subject to prior written notice pursuant to clause (a)(ii) below and the payment of the Early Prepayment Fee pursuant to clause (c) below and the Exit Fee pursuant to Section 3.04, the Borrower shall have the right to optionally prepay, in whole or in part, the outstanding principal amount of the Loans on a Prepayment Date ; provided that in addition to such prepaid principal amount and the Early Prepayment Fee payable pursuant to clause (c) below, the Borrower shall also make payment in full in cash on such Prepayment Date of all accrued but unpaid interest on the principal amount of the Loans being prepaid (such aggregate amount of principal, the Early Prepayment Fee payable pursuant to clause (c) below, the Exit Fee payable pursuant to Section 3.04 below and accrued interest, the “Prepayment Price”).

 

(ii) A notice of optional prepayment shall be effective only if received by the Agent not later than 11:00 a.m. (New York City time) on a date not less than three (3) (nor more than five (5)) Business Days prior to the proposed Prepayment Date. Each notice of optional prepayment shall specify the proposed Prepayment Date, the principal amount of the Loans to be prepaid, the amount of accrued and unpaid interest that will be paid on the Prepayment Date, and, in reasonable detail, a calculation of the Early Prepayment Fee and the Exit Fee, payable on such Prepayment Date in connection with such proposed prepayment.

 

(b) Mandatory Prepayments.

 

(i) Within five (5) Business Days of the receipt by any Obligor of Net Cash Proceeds from the occurrence of any Casualty Event or Specified Asset Sale, in either case in excess of $1,000,000 in the aggregate during any fiscal year, the Borrower shall cause an amount equal to one hundred percent (100%) of the Net Cash Proceeds received with respect to such Casualty Event or Specified Asset Sale, as the case may be, to be applied and allocated as set forth in clause (d) below to (i) the prepayment of the outstanding principal amount of the Loans,

(ii) the payment of accrued and unpaid interest on the principal amount of the Loans being prepaid and (iii) the payment of the Early Prepayment Fee payable pursuant to clause (c) below and the Exit Fee payable pursuant to Section 3.04 below.

 

(ii) Notwithstanding clause (i) above, so long as no Default has occurred and is continuing or shall immediately result therefrom, if, within ten (10) Business Days following the occurrence of any such Casualty Event or Specified Asset Sale, a Responsible Officer of Parent delivers to the Agent a notice to the effect that the Borrower intends to apply (or cause to be applied) the Net Cash Proceeds from such Casualty Event or Specified Asset Sale, to (A) repair, refurbish, restore, replace or rebuild the asset subject to such Casualty Event or Specified Asset Sale, (B) the cost of purchase or constructing other assets useful in the business of Parent or another Obligor, or (C) other general corporate purposes (excluding Restricted Payments) not otherwise prohibited by the terms of this Agreement, then such Net Cash Proceeds of such Casualty Event or Specified Asset Sale may be applied for such purpose in lieu of such mandatory prepayment otherwise required pursuant to Section 3.03(b)(i) to the extent such Net Cash Proceeds of such Casualty Event or Specified Asset Sale are actually applied for such purpose. Notwithstanding the foregoing, in the event that Net Cash Proceeds have not been so applied within three hundred sixty (360) days following the occurrence of such Casualty Event or Specified Asset Sale, the Borrower shall cause an amount equal to one hundred percent (100%) of such unused balance of such Net Cash Proceeds with respect to such Casualty Event or Specified Asset Sale, as the case may be, to be applied and allocated as set forth in clause (d) below to the prepayment of the outstanding principal amount of the Loans, together with payment of accrued and unpaid interest on the principal amount of the Loans being so prepaid, the applicable Early Prepayment Fee payable pursuant to clause (c) below.

 

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(c) Early Prepayment Fee. Without limiting the foregoing, whenever any prepayment of Loans is made or required to be made hereunder, pursuant to Section 3.03(a) or Section 3.03(b)(i) or otherwise, whether voluntary, involuntary, mandatory, as a result of a Default, acceleration or otherwise, the Early Prepayment Fee shall be payable in full in cash on the applicable Prepayment Date for such prepayment. Until payment in full in cash of all Obligations, all Early Prepayment Fees shall continue to be due and payable, including after the occurrence of any Default, acceleration, maturity or otherwise.

 

(d) Application.

 

(i) With respect to any payment, repayment or prepayment made pursuant to clause (a) or (b) above, the aggregate amount of such payment, repayment or prepayment shall be applied and allocated to (i) the prepayment of the outstanding principal amount of the Loans, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of any applicable Early Prepayment Fee and Exit Fee such that the full amount of the principal amount of the Loans being prepaid, together with any accrued and unpaid interest thereon and the Early Prepayment Fee and Exit Fee payable hereunder, shall be paid in full through such application and allocation of such aggregate amount of such payment, repayment or prepayment.

 

(ii) With respect to any other payment, repayment or prepayment of the outstanding principal amount of the Loans (including, for the avoidance of doubt, upon the maturity or following the acceleration thereof, whether from the proceeds of Collateral or otherwise), proceeds thereof shall be applied in the following order of priority, with proceeds being applied to a succeeding level of priority only if amounts owing pursuant to the immediately preceding level of priority have been paid in full in cash; provided that all such applications to Lenders shall be made in accordance with their respective Proportionate Shares:

 

(A) first, to the payment of that portion of the Obligations payable to the Agent constituting fees, indemnities, costs, expenses, and other amounts then due and owing (including fees and disbursements and other charges of counsel payable under Section 14.03);

 

(B) second, to the payment of that portion of the Obligations payable to the Lenders constituting fees (other than any Early Prepayment Fee and Exit Fee), indemnities, expenses, and other amounts then due and owing (including fees and disbursements and other charges of counsel payable under Section 14.03) ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;

 

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(C) third, to the payment of any accrued and unpaid interest then due and owing;

 

(D) fourth, to the payment of unpaid principal of the Loans;

 

(E) fifth, to the payment of any Early Prepayment Fee and Exit Fee then due and payable;

 

(F) sixth, to the payment in full of all other Obligations then due and payable to the Agent and the Lenders, ratably among them accordance with their respective Proportionate Shares, to the extent such Obligations are payable to them; and

 

(G) seventh, to the Borrower or such other Persons as may be required in accordance with Law.

 

3.04 Exit Fee. In addition to any fees payable pursuant to Section 3.03(c), on the date of each repayment or prepayment of all or any portion of the Loans, whether by voluntary, involuntary or mandatory prepayment or repayment, acceleration (including as a result of the occurrence of any event described in Section 11.01(h)) or otherwise, and whether on, prior to or after the scheduled Maturity Date, the Borrower shall pay to the Agent a fully-earned and nonrefundable exit fee equal to three percent (3.00%) of the principal amount of such repayment or prepayment (an “Exit Fee”); provided that, with respect to any Monthly Amortization Payment made prior to the scheduled Maturity Date, the payment of the Exit Fee with respect to such payment shall be deferred until the earlier of (i) such scheduled Maturity Date and (ii) the date of payment in full in cash of the outstanding principal amount of the Loans, and upon such earlier date all such deferred payments shall be due and payable in full and in cash. Upon payment in full in cash of the Obligations, the Borrower shall pay to the Agent the Exit Fee in respect of the aggregate principal amount of the Obligations paid in accordance with Section 3.01(a). Until payment in full in cash of all Obligations, all Exit Fees shall continue to be due and payable, including after the occurrence of any Default, acceleration, maturity or otherwise.

 

3.05 Fee Letter. The Borrower and Parent shall, jointly and severally, pay all fees as and when payable under and in accordance with the Fee Letter.

 

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SECTION 4
PAYMENTS, ETC.

 

4.01 Payments.

 

(a) Payments Generally. Each payment of principal, interest and other amounts to be made by the Obligors under this Agreement or any other Loan Document shall be made (i) in Dollars, in immediately available funds, without deduction, set off or counterclaim, to the Agent, for the account of the respective Lenders to which such payment is owed, to the deposit account of the Agent designated by the Agent by notice to the Borrower, and (ii) not later than 11:00 a.m. (New York City time) on the date on which such payment is due (each such payment made after such time on such due date shall be deemed to have been made on the next succeeding Business Day).

 

(b) Application of Payments. All such payments referenced in clause (a) above shall be applied as set forth in Section 3.03(d) above.

 

(c) Non-Business Days. If the due date of any payment under this Agreement (whether in respect of principal, interest, fees, costs or otherwise) would otherwise fall on a day that is not a Business Day, such date shall be extended to the next succeeding Business Day; provided that if such next succeeding Business Day would fall after the Maturity Date, payment shall be made on the immediately preceding Business Day.

 

4.02 Computations. All computations of interest and fees hereunder shall be computed on the basis of a year of three hundred and sixty (360) days and actual days elapsed during the period for which payable.

 

4.03 Set-Off.

 

(a) Set-Off Generally. Upon the occurrence and during the continuance of any Event of Default, the Agent, each of the Lenders and each of their Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Agent, any Lender and any of their Affiliates to or for the credit or the account of any Obligor against any and all of the Obligations, whether or not such Person shall have made any demand and although such obligations may be unmatured. Any Person exercising rights of set off hereunder agrees promptly to notify the Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Agent, the Lenders and each of their Affiliates under this Section 4.03 are in addition to other rights and remedies (including other rights of set-off) that such Persons may have.

 

(b) Exercise of Rights Not Required. Nothing contained in Section 4.03(a) shall require the Agent, any Lender or any of their Affiliates to exercise any such right or shall affect the right of such Persons to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of any Obligor.

 

(c) Payments Set Aside. To the extent that any payment by or on behalf of any Obligor is made to the Agent or any Lender, or the Agent, any Lender or any Affiliate of the foregoing exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Agent, such Lender or such Affiliate in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency Proceeding or otherwise, then (i) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (ii) each Lender severally agrees to pay to the Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect.

 

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SECTION 5

YIELD PROTECTION, ETC.

 

5.01 Additional Costs.

 

(a) Changes in Law Generally. If, on or after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), the adoption of any Law, or any change in any Law, or any change in the interpretation or administration thereof by any court or other Governmental Authority charged with the interpretation or administration thereof, or compliance by the Agent or any of the Lenders (or its lending office) with any request or directive (whether or not having the force of law) of any such Governmental Authority, shall impose, modify or deem applicable any reserve (including any such requirement imposed by the Board of Governors of the Federal Reserve System), special deposit, contribution, insurance assessment or similar requirement, in each case that becomes effective after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), against assets of, deposits with or for the account of, or credit extended by, a Lender (or its lending office) or other Recipient or shall impose on a Lender (or its lending office) or other Recipient any other condition affecting the Loans or the Commitment, not as a result of any action or inaction on the part of such Lender, and the result of any of the foregoing is to increase the cost to such Lender or such other Recipient of making or maintaining the Loans, or to reduce the amount of any sum received or receivable by such Lender or other Recipient under this Agreement or any other Loan Document, or subject any Lender or other Recipient to any Taxes on its loans, loan principal, commitments or other obligations, or its deposits, reserves, other liabilities or capital (if any) attributable thereto (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (ii) through (iv) of the definition of “Excluded Taxes” and (iii) Connection Income Taxes), then the Borrower shall pay to such Lender or other Recipient within five (5) Business Days after any demand for such additional amount or amounts as will compensate such Lender for such increased cost or reduction.

 

(b) Change in Capital Requirements. If a Lender shall have determined that, on or after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), the adoption of any applicable Law regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy (whether or not having the force of law) of any such Governmental Authority, in each case that becomes effective after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), has or would have the effect of reducing the rate of return on capital of a Lender (or its parent) as a consequence of a Lender’s obligations hereunder or the Loans to a level below that which a Lender (or its parent) could have achieved but for such adoption, change, request or directive by an amount reasonably deemed by it to be material, then the Borrower shall pay to such Lender within five (5) Business Days after any demand for such additional amount or amounts as will compensate such Lender (or its parent) for such reduction.

 

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(c) Notification by Lender. Each Lender shall promptly notify the Borrower of any event of which it has knowledge, occurring after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), which will entitle such Lender to compensation pursuant to this Section 5.01, together with a certificate setting forth the calculation (in reasonable detail) of such compensation. Before giving any such notice pursuant to this Section 5.01(c) such Lender shall designate a different lending office if such designation (x) will, in the reasonable judgment of such Lender, avoid the need for, or reduce the amount of, such compensation and (y) will not, in the reasonable judgment of such Lender, be materially disadvantageous to such Lender. A certificate of such Lender claiming compensation under this Section 5.01, setting forth in reasonable detail the additional amount or amounts to be paid to it hereunder, shall be conclusive and binding on the Borrower in the absence of manifest or demonstrable error.

 

(d) Delays in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 5.01 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 5.01 for any increased costs or reductions incurred or suffered more than nine months prior to the date that such Lender notifies the Borrower of the circumstance giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the circumstances giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

(e) Other Changes. Notwithstanding anything herein to the contrary, (x) the Dodd- Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to constitute a change in Law for all purposes of this Section 5.01, regardless of the date enacted or adopted.

 

(f) General Policy. Notwithstanding the foregoing, the Borrower shall only be required to compensate a Lender pursuant to this Section 5.01 to the extent it is such Person’s general policy or practice to demand compensation from debtors similarly situated in similar circumstances under comparable provisions of other financing agreements (it being understood that this paragraph shall not be deemed to require any such Person to make available any information that it deems in its reasonable discretion confidential).

 

5.02 Illegality. Notwithstanding any other provision of this Agreement, if, on or after the Closing Date (or, with respect to any Lender, such later date on which such Lender becomes party to this Agreement), the adoption of or any change in any applicable Law or in the interpretation or application thereof by any competent Governmental Authority shall make it unlawful for a Lender or its lending office to make or maintain the Loans (and, in the opinion of such Lender, the designation of a different lending office would either not avoid such unlawfulness or would be disadvantageous to such Lender), then such Lender shall promptly notify the Borrower thereof, following which (i) such Lender’s Commitment shall be suspended until such time as such Lender may again make and maintain the Loans hereunder and (ii) if such Law shall so mandate, the Loans shall be prepaid by the Borrower on or before such date as shall be mandated by such Law in an amount equal to the Prepayment Price applicable on such Prepayment Date in accordance with Section 3.03(a).

 

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5.03 Taxes.

 

(a) Payments Free of Taxes. Any and all payments by or on account of any Obligation shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by such Obligor shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 5.03) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Agent or each Lender, timely reimburse it for the payment of any Other Taxes.

 

(c) Evidence of Payments. As soon as reasonably practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 5, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.

 

(d) Indemnification by the Borrower. The Borrower and each other Obligor party hereto each hereby jointly and severally agree to indemnify, hold harmless and reimburse each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest or demonstrable error.

 

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(e) Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 14.05(g) relating to the maintenance of a Participant Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest or demonstrable error. Each Lender hereby authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Agent to the Lender from any other source against any amount due to the Agent under this clause (e).

 

(f) Status of Lenders.

 

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding; provided that, other than in the case of U.S. federal withholding Taxes, such Lender has received written notice from the Borrower advising it of the availability of such exemption or reduction and containing all applicable documentation. In addition, any Lender, if reasonably requested by the Borrower or the Agent shall deliver such other documentation prescribed by applicable Law as reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.03(f)(ii)(A), (ii)(B), and (ii)(D)) shall not be required if in such Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii) Without limiting the generality of the foregoing, if the Borrower is a U.S. Person:

 

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of IRS Form W-9 (or successor form) certifying that such Lender is exempt from U.S. federal backup withholding Tax;

 

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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:

 

(1) in the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E as applicable (or successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E as applicable (or successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;

 

(2) executed copies of IRS Form W-8ECI (or successor form);

 

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E as applicable (or successor forms); or

 

(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY (or successor form), accompanied by IRS Form W-8ECI (or successor form), IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate, substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9 (or successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner.

 

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by such applicable Law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and

 

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Recipient’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment under FATCA. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Closing Date.

 

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Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.

 

(g) Treatment of Certain Tax Benefits. If any party to this Agreement determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.03 (including by the payment of additional amounts pursuant to this Section 5.03), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.03 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 5.03(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) if such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.03(g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.03(g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 5.03(g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h) Investment Unit. The Borrower and the applicable Lenders agree, for U.S. federal income (and applicable U.S. state and local and non-U.S.) tax purposes, that (i) each of the Loans issued pursuant to this Agreement, together with the Parent common stock issued pursuant to Section 6.01(s) (the “Parent Stock”) constitute an “investment unit” under Section 1273(c)(2) of the Code and United States Treasury Regulations Section 1.1273-2(h), (ii) the “issue price” of the Loans under Section 1273(b) of the Code shall be determined by taking into account the aggregate purchase price allocated to such Parent Stock pursuant to this Section 5.03(h), and (iii) if the difference between the aggregate principal amount of the Loans and the aggregate “issue price” of the Loans is more than “de minimis,” the difference shall be reported as “original issue discount”. Within thirty (30) days of the issuance of the Parent Stock hereunder, the parties shall cooperate in good faith to agree on the value of such Parent Stock, which the parties acknowledge and agree shall be equal to the fair market value of the Parent Stock as of the date of issuance. No party shall take any position inconsistent with the tax treatment set forth in this Section 5.03(h) on any U.S. federal (or applicable U.S. state or local or non-U.S.) tax return or for any other U.S. federal income (or applicable U.S. state or local or non-U.S.) tax purpose, except as required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or pursuant to a good faith settlement of an audit by any tax authority.

 

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(i) Survival. Each party’s obligations under this Section 5.03 below shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all Obligations under any Loan Document.

 

5.04 Mitigation Obligations. If the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 5.01 or Section 5.03, then such Lender shall (at the request of the Borrower) use commercially reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the sole, reasonable judgment of such Lender, such designation or assignment and delegation would (i) eliminate or reduce amounts payable pursuant to Section 5.01 or Section 5.03, as the case may be, in the future, (ii) not subject such Lender to any unreimbursed cost or expense and (iii) not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation.

 

SECTION 6
CONDITIONS PRECEDENT

 

6.01 Conditions to the Borrowing of the Loan. The obligation of the Lenders to make the Loan on the Closing Date shall be subject to the execution and delivery of this Agreement by the parties hereto, the delivery of a Borrowing Notice as required pursuant to Section 2.02, the delivery of a funds flow memorandum summarizing, in reasonable detail, the use of proceeds of Loan, the occurrence of the Closing Date on or before the earlier of (x) the “Termination Date” as defined in the De-SPAC Combination Agreement (and as may be extended as provided in Section 7.01(d) therein) and (y) August 7, 2023, and the prior or concurrent satisfaction (or waiver thereof by the Agent) of each of the conditions precedent set forth below in this Section 6.01.

 

(a) Secretary’s Certificate, Etc. The Agent shall have received from each Obligor party to a Loan Document on the Closing Date:

 

(i) a copy of a good standing certificate or the equivalent thereof (to the extent such concepts are recognized in such jurisdictions as are applicable), dated a date reasonably close to the Closing Date, for each such Person; and

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(ii) a certificate, dated as of the Closing Date, duly executed and delivered by such Person’s secretary or assistant secretary, managing member, general partner or equivalent, as to:

 

(A) resolutions of each such Person’s Board then in full force and effect authorizing the execution, delivery and performance of each Loan Document and the Transactions, to be executed and delivered by such Person;

 

(B) the incumbency and signatures of those of its officers, managing member or general partner or equivalent authorized to act with respect to each Loan Document to be executed and delivered by such Person; and

 

(C) true and complete copies of each Organic Document of such Person and copies thereof;

 

which certificates the Agent and the Lenders may conclusively rely upon until they shall have received a further certificate of the secretary, assistant secretary, managing member, general partner or equivalent of any such Person cancelling or amending the prior certificate of such Person.

 

(b) Information Certificate. The Agent shall have received a fully completed Information Certificate, in form and substance reasonably satisfactory to the Agent, dated as of the Closing Date, duly executed and delivered by a Responsible Officer of Parent and the Borrower, which is true and correct as of the Closing Date. All documents and agreements required to be appended to the Information Certificate, if any, shall be in form and substance reasonably satisfactory to the Agent and the Lenders, shall have been executed and delivered by the requisite parties and shall be in full force and effect.

 

(c) Closing Date Certificate. The following statements shall be true and correct, and the Agent shall have received a certificate, dated as of the Closing Date and in form reasonably satisfactory to the Agent, duly executed and delivered by a Responsible Officer of Parent and the Borrower certifying that: (i) both immediately before and after giving effect to the Borrowing on the Closing Date, (x) the representations and warranties set forth in each Loan Document that are qualified by materiality, Material Adverse Effect or the like are, in each case, true and correct; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct as of such earlier date, (y) the representations and warranties set forth in each Loan Document that are not qualified by materiality, Material Adverse Effect or the like are, in each case, true and correct in all material respects; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date, and (z) no Event of Default has occurred and is continuing, or could reasonably be expected to result from the Borrowing of the Loan, or the consummation of any Transactions contemplated to occur on the Closing Date, and (ii) all of the conditions set forth in this Section 6.01 have been satisfied (or waived in writing by the Agent) except to the extent such condition relates to the satisfaction or approval in form or substance of any documents by the Agent. All documents and agreements required to be appended to the certificate delivered pursuant to this Section 6.01(c), if any, shall be in form and substance reasonably satisfactory to the Agent, shall have been, as applicable, executed and delivered by the requisite parties, and shall, as applicable, be in full force and effect.

 

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(d) Financial Information, Etc. The Agent shall have received:

 

(i) audited consolidated financial statements of the Borrower (or any predecessor thereof) and its Subsidiaries for each of the three fiscal years ended prior to the Closing Date for which such audited consolidated financial statements are available; and

 

(ii) unaudited consolidated balance sheets of Parent and its Subsidiaries for each fiscal quarter ended at least forty five (45) days prior to the Closing Date ended after the date of the most recently available audited consolidated financial statements delivered pursuant to clause (i) above, together with the related consolidated statement of operations, shareholder’s equity and cash flows for each such fiscal quarter.

 

(e) Minimum Liquidity.

 

(i) The Agent shall have received evidence reasonably satisfactory to it that, as a result of the consummation of the Transactions on the Closing Date (and without regard to cash on hand immediately prior to the Closing Date), the Borrower shall have received on the Closing Date net cash proceeds of the Transactions (i.e., after giving effect to the payment of all related fees, costs and expenses, repayments, prepayments and any similar Transaction-related costs, expenses and payments, but not the payment of any Schedule 6.01(e) fees)) in an aggregate amount not less than $70,000,000 (the “Minimum Cash Closing Amount”); provided that, any term or provision hereof to the contrary notwithstanding, (i) the Borrower may pay the Schedule 6.01(e) Fees notwithstanding that such payment may result in the Borrower’s cash on hand immediately following the Closing Date to be less than the Minimum Cash Closing Amount so long as the total amount of Schedule 6.01(e) Fees paid by the Borrower does not exceed $6,000,000 in the aggregate, and (ii) in the event that pursuant to and as a result of the Interim Financing (as defined in the Bridging Agreement) the Borrower raises in excess of $15,000,000 of net proceeds (such excess being the “Incremental Financing Excess Amount”), for purposes of calculating the Minimum Cash Closing Amount the Borrower may include an amount equal to the lesser of (x) the Incremental Financing Excess Amount and (y) the amount of cash on hand actually held by the Borrower immediately prior to the Closing Date.

 

(ii) The Agent shall have received evidence reasonably satisfactory to it that, immediately after giving effect to the consummation of the Transactions on the Closing Date, the Borrower shall be in compliance with the covenant set forth in Section 10.01.

 

(f) Insurance. The Agent shall have received certificates of insurance evidencing that the insurance required to be maintained pursuant to Section 8.05 is in full force and effect, together with endorsements naming the Agent, for the benefit of the Lenders, as additional insured and loss payee thereunder, in each case, in form and substance reasonably satisfactory to the Agent.

 

(g) Solvency. The Agent shall have received a solvency certificate substantially in the form of Exhibit I, duly executed and delivered by the chief financial or accounting Responsible Officer of Parent, dated as of the Closing Date, in form and substance reasonably satisfactory to the Agent.

 

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(h) Security Documents. The Agent shall have received executed counterparts of all Security Documents of all Obligors to be entered into on the Closing Date (including Foreign Security Documents in respect of Allurion France SAS and Allurion Australia Pty Ltd.), each dated as of the Closing Date, duly executed and delivered by each such Obligor, together with the following (or local equivalent thereof in respect of any Foreign Security Document):

 

(i) The delivery of all certificates (in the case of Equity Interests that are securities (as defined in the UCC)) evidencing the issued and outstanding capital securities owned by Parent, the Borrower and each Subsidiary that are required to be pledged under such Security Documents, which certificates in each case shall be accompanied by undated instruments of transfer duly executed in blank, or, in the case of Equity Interests that are uncertificated securities (as defined in the UCC), confirmation and evidence satisfactory to the Agent and the Lenders that the security interest required to be pledged therein under such Security Documents has been transferred to and perfected by the Agent for the benefit of the Secured Parties in accordance with Articles 8 and 9 of the NY UCC and all Laws otherwise applicable to the perfection of the pledge of such Equity Interests;

 

(ii) financing statements naming each Obligor as a debtor and the Agent as the secured party, or other similar instruments, registrations, or documents, in each case suitable for filing, filed under the UCC (or equivalent law) of all jurisdictions as may be necessary or, in the opinion of the Agent, desirable to perfect the Liens of the Secured Parties pursuant to such Security Documents;

 

(iii) UCC-3 termination statements, as may be necessary to release all Liens (other than Permitted Liens) and other rights of any Person in any collateral described in the Security Documents previously granted by any Person; and

 

(iv) all Short-Form IP Security Agreements, Real Property Security Documents and any other agreement, document or instrument required to be provided under any Security Document on the Closing Date, duly executed and delivered by the applicable Obligors.

 

(i) Lien Searches. The Agent shall have received the results of Lien searches regarding Parent and its Subsidiaries made within thirty (30) days prior to the Closing Date, and such searches shall reveal no Liens on any of the assets of such Persons except for Liens permitted by Section 9.02 or to be discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Agent.

 

(j) Controlled Accounts. The Agent shall have received evidence satisfactory to it that all Deposit Accounts, Securities Accounts, Commodities Accounts, lockboxes or other similar accounts of each Obligor (other than Excluded Accounts) are Controlled Accounts.

 

(k) Fee Letter. The Agent shall have received the Fee Letter duly executed and delivered by Parent and the Borrower.

 

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(l) Opinions of Counsel. The Agent shall have received one or more legal opinions, dated as of the Closing Date and addressed to the Agent and the Lenders, from independent legal counsel to Parent, the Borrower and their Subsidiaries and if necessary, other legal counsel reasonably satisfactory to the Agent, in each case, in form and substance reasonably acceptable to the Agent.

 

(m) Payoff of Refinanced Debt. The Refinanced Debt, together with all accrued and unpaid interest and related fees, costs and expenses, shall be, substantially contemporaneously with the funding of the Loans, paid in full, and the Agent shall have received executed payoff letters, in form and substance reasonably satisfactory to the Agent, providing for such payment in full (and irrevocable termination) of the Refinanced Debt and satisfactory arrangements shall have been made for the termination of all loan documents evidencing such Refinanced Debt and all Liens granted in connection therewith. On the Closing Date, after giving effect to the Transactions, Parent and its Subsidiaries shall not have any Indebtedness other than the Obligations and other Permitted Indebtedness.

 

(n) Convertible Notes. The Agent shall have received satisfactory evidence that the Convertible Notes shall have been converted to common Equity Interests of the Parent immediately prior to the consummation of the De-SPAC Transaction and cancelled and of no further force and effect, and the Parent, the Borrower and their Subsidiaries shall have no liability thereunder (other than contingent indemnification claims for which no claims have been made in writing).

 

(o) RTW Royalty Financing. The Agent shall have received satisfactory evidence that the “Closing Date” under the RTW Royalty Financing Agreement shall have occurred, resulting in gross proceeds to the Parent (which shall be contributed to the Borrower) in an amount not less than $40,000,000. The Agent shall have received fully executed copies of the RTW Royalty Financing Agreement and all transaction documents related thereto, which shall be in form and substance satisfactory to the Agent.

 

(p) Side Letter. The Agent shall have received satisfactory evidence that the Side Letter has been executed. The Agent shall have received a fully executed copy of the Side Letter and all annexes thereto, each of which shall be in form and substance satisfactory to the Agent.

 

(q) Intercreditor Agreement. The Agent shall have received the Intercreditor Agreement duly executed by RTW and the Borrower.

 

(r) PIPE Transaction. The Agent shall have received satisfactory evidence that the PIPE Transaction shall have been consummated in accordance with the PIPE Agreements without any amendments, waivers or consents thereto that are materially adverse to the interests of the Lenders or the Agent without the prior written consent of the Lenders and the Agent. The Agent shall have received fully executed copies of the PIPE Agreement and all transaction documents related thereto, which shall be in form and substance satisfactory to the Agent.

 

(s) De-SPAC Transaction. The Agent shall have received satisfactory evidence that the De-SPAC Transaction shall have been consummated in accordance with the De-SPAC Combination Agreement without any amendments, waivers or consents thereto that are adverse to the interests of the Lenders or the Agent in any material respect without the prior written consent of the Lenders and the Agent. The Agent shall have received fully executed copies of the De-SPAC Combination Agreement and all transaction documents related thereto, which shall be in form and substance satisfactory to the Agent.

 

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(t) Closing Date Equity Issuance. The applicable Lenders (or their nominated Affiliates) shall have been issued (at no additional cost to such Lenders and in partial consideration of the Loans made by such Lenders) [_]3 shares of the Parent’s common stock on terms and conditions satisfactory to such Lenders or their nominated Affiliates but in any event such shares (i) shall be subject to a customary registration rights agreement in the form attached as Exhibit A to the De-SPAC Combination Agreement and (ii) shall be validly issued, fully paid and non-assessable, issued without violation of any pre-emptive or similar rights of any stockholder of the Parent and free and clear of all Liens.

 

(u) Material Regulatory Event; Material Adverse Change. No Material Regulatory Event has occurred and is continuing and, since December 31, 2021, no Material Adverse Change has occurred.

 

(v) Anti-Terrorism Laws. The Agent shall have received, as applicable, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.

 

(w) All Other Loan Documents. The Agent shall have received all other Loan Documents to be entered into on the Closing Date in form and substance satisfactory to the Agent, and the Agent shall have received all information, approvals, resolutions, opinions, documents or instruments as the Agent shall have reasonably requested in writing.

 

(x) Minimum Revenue. The Agent shall have received satisfactory evidence that (i) if the Closing Date occurs on or prior to March 31, 2023, the Obligors shall have received Revenue in the ordinary course of business, for the twelve (12) month consecutive period ending on the last day of the fiscal quarter ending December 31, 2022 in an aggregate amount not less than $60,000,000; (ii) if the Closing Date occurs after March 31, 2023, but on or prior to June 30, 2023, the Obligors shall have received Revenue in the ordinary course of business, for the twelve (12) month consecutive period ending on the last day of the fiscal quarter ending March 31, 2023 in an aggregate amount not less than $65,000,00; and (iii) if the Closing Date occurs after June 30, 2023, but on or prior to September 30, 2023, the Obligors shall have received Revenue in the ordinary course of business, for the twelve (12) month consecutive period ending on the last day of the fiscal quarter ending June 30, 2023 in an aggregate amount not less than

$70,000,00.

 

(y) Governmental Approvals and Third Party Consents. The Agent shall have received evidence that Parent, the Borrower and the applicable Subsidiaries have obtained all Governmental Approvals and third party permits, licenses, approvals and consents necessary in connection with the execution, delivery and performance of the Loan Documents by the Obligors, the consummation by the Obligors of their obligations in respect of Transactions or the operation and conduct of the Obligors’ business and ownership of their properties (including their Product Commercialization and Development Activities).

 

 

3Actual share amount to be inserted in the Closing Date version of this Agreement to be equal to 250,000 shares (which represents 0.5% of the Parent’s equity interests on a fully diluted basis), plus up to an additional 750,000 shares (which represents 1.5% of the Parent’s equity interests on a fully diluted basis) based on the Borrower’s Net Closing Cash (as defined in the De-SPAC Combination Agreement).

 

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(z) Fees, Expenses, Etc. The Agent shall have received (or shall substantially contemporaneously with the funding of the Loans receive) for its account and the account of each Lender, all fees required to be paid on the Closing Date under the Fee Letter and all other fees, costs and expenses due and payable pursuant to Section 14.03.

 

SECTION 7
REPRESENTATIONS AND WARRANTIES

 

The Obligors hereby jointly and severally represent and warrant to the Agent and each Lender that:

 

7.01 Power and Authority. Each of the Obligors and their Subsidiaries (i) is duly organized or incorporated and validly existing under the laws of its jurisdiction of organization or incorporation, (ii) has all requisite corporate or other power, and has all Governmental Approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, including all Regulatory Approvals, (iii) is qualified to do business and, to the extent such concept is recognized in such jurisdictions as are applicable, is in good standing in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, and (iv) has full power, authority and legal right to enter into and perform its obligations under each of the Loan Documents to which it is a party and, in the case of the Borrower, to borrow the Loans hereunder.

 

7.02 Authorization; Enforceability. Each Transaction to which an Obligor or any of its Subsidiaries is a party (or to which it or any of its assets or properties is subject) is within such Person’s corporate or other powers and have been duly authorized by all necessary corporate action including, if required, approval by all necessary holders of Equity Interests. This Agreement has been duly executed and delivered by each Obligor party hereto and constitutes, and each of the other Loan Documents to which it is a party when executed and delivered by such Obligor, will constitute, a legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

7.03 Governmental and Other Approvals; No Conflicts. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other Person (other than those that have been duly obtained or made and which are in full force and effect) is required for the due execution, delivery or performance by any Obligor of any Loan Document to which it is a party, except for filings and recordings in respect of perfecting or recording the Liens created pursuant to the Security Documents. The execution, delivery and performance by each Obligor of each Loan Document to which it is a party will not (i) violate or conflict with any Law, (ii) violate or conflict with any Organic Document of such Obligor, (iii) violate or conflict with any applicable Governmental Approval of any Governmental Authority, (iv) violate or result in a default under any Material Agreement binding upon Parent or any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect or (v) result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of such Obligor. Each Obligor, its Subsidiaries and their respective properties and businesses are in compliance in all material respects with all applicable Laws (including Healthcare Laws) and Governmental Approvals applicable to such Person and its properties or businesses, as the case may be.

 

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7.04 Financial Statements; Material Adverse Change.

 

(a) Financial Statements. The consolidated financial statements of the Borrower and its Subsidiaries delivered to the Agent pursuant to Section 6.01(d) present fairly, in all material respects, the consolidated financial position and results of operations, cash flows and shareholders’ equity of the Borrower (or its predecessor entity) and its Subsidiaries as of the dates and for such periods as to which such financial statement relate, in each case in accordance with GAAP. All financial statements delivered by the Parent after the Closing Date pursuant to Section 8.01 present fairly, in all material respects, the consolidated financial position and results of operations, cash flows and shareholders’ equity of the Parent and its Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements of the type described in Section 8.01(b). Neither Parent nor any of its Subsidiaries has any material contingent liabilities or unusual forward or long-term commitments which are required to be disclosed but are not disclosed in the aforementioned financial statements

 

(b) No Material Adverse Change. Since December 31, 2021, there has been no Material Adverse Change.

 

7.05 Properties.

 

(a) Property Generally. With respect to all real and personal assets and properties of each Obligor and each of its Subsidiaries (other than Intellectual Property which is covered in clause (c) below), such Obligor and each of its Subsidiaries has good and marketable fee simple title to, or valid leasehold interests in, all such real and personal property, whether tangible or intangible, material to its business, including all Products and all properties and assets of such Obligor and its Subsidiaries relating to their Products or Product Commercialization and Development Activities, subject only to Permitted Liens and except as could not reasonably be expected to (i) interfere in any material respect with its ability to conduct its business as currently conducted or as anticipated to be conducted or to utilize such properties and assets for their intended purposes or (ii) prevent or interfere in any material respect with the ability of such Obligor or any of its Subsidiaries to conduct its business in the ordinary course.

 

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(b) Products. Schedule 7.05(b) contains a complete and accurate list and description (in reasonable detail) of all Products (set forth on an Obligor-by-Obligor or Subsidiary-by- Subsidiary basis, as the case may be).

 

(c) Intellectual Property.

 

(i) Schedule 7.05(c) contains, with respect to each Obligor and each of its Subsidiaries (set for forth on an Obligor-by-Obligor or Subsidiary-by-Subsidiary basis):

 

(A) a complete and accurate list of all pending patent applications or unexpired, non-lapsed, non-abandoned, issued Patents, owned by or licensed to any Obligors or any of its Subsidiaries, which would qualify as Material Intellectual Property including the jurisdiction and patent number, and as to each such Patent shall indicate if such Patent covers a Product or its use and shall specify which such Product its claims cover;

 

(B) a complete and accurate list of all material pending Trademark applications for, or registered Trademarks, owned by or licensed to an Obligor or any of its Subsidiaries, including the jurisdiction, trademark application or registration number and the application or registration date, which would qualify as Material Intellectual Property;

 

(C) a complete and accurate list of all pending Copyright registrations or registered Copyrights, owned by or licensed to any Obligor or any of its Subsidiaries, which would qualify as Material Intellectual Property; and

 

(D) a complete and accurate list of all Technical Information which would qualify as Material Intellectual Property.

 

(ii) An Obligor is the absolute registered legal owner of all right, title and interest in and to the Material Intellectual Property owned by such Person (including, without limitation, any Material Intellectual Property indicated on Schedule 7.05(c) with good and marketable title, free and clear of any Liens or Claims of any kind whatsoever other than Permitted Liens, and such Person has the right to exercise its rights under such Intellectual Property in the ordinary course of its businesses as currently conducted or as anticipated to be conducted. Without limiting the foregoing, and except as set forth on Schedule 7.05(c):

 

(A) other than as permitted by Section 9.09 none of the Obligors nor any of their Subsidiaries has transferred ownership of any of its Intellectual Property that qualifies as Material Intellectual Property, in whole or in part, to any Person who is not an Obligor;

 

(B) other than (1) customary restrictions in in-bound licenses of Intellectual Property and non-disclosure agreements, or (2) as would not have been prohibited by Section 9.18, there are no judgments, covenants not to sue, permits, grants, licenses, Liens (other than Permitted Liens), Claims, or other agreements or arrangements relating to or otherwise materially and adversely affecting any Material Intellectual Property, including any development, submission, services, research, license or support agreements, which materially bind, obligate or otherwise restrict an Obligor or any of its Subsidiaries with respect to any Material Intellectual Property;

 

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(C) the use by an Obligor or any of its Subsidiaries of any of its respective Material Intellectual Property in the ordinary course of such Person’s business as currently conducted or as anticipated to be conducted does not breach, violate, infringe or interfere with or constitute a misappropriation of any valid rights arising under any Intellectual Property of any other Person;

 

(D) (1) there are no pending or, to any of the Obligor’s or its Subsidiaries’ knowledge, threatened Claims against any Obligor or any of its Subsidiaries asserted by any other Person relating to any Material Intellectual Property including any Claims of adverse ownership, invalidity, infringement, misappropriation, violation or other opposition to or conflict with such Intellectual Property; and (2) none of the Obligors nor any of their Subsidiaries has received any written notice from, or Claim by, any other Person that the business of any Obligor or any of its Subsidiaries as currently conducted or as anticipated to be conducted, the use of Material Intellectual Property by any Obligor or any of its Subsidiaries in the conduct of the Obligors’ business as currently conducted or as anticipated to be conducted, or any Product Commercialization and Development Activities with respect to any Product, infringes upon, violates or constitutes a misappropriation of, or may infringe upon, violate or constitute a misappropriation of, or otherwise interfere with, or otherwise offering a license with respect to, any Intellectual Property of any such other Person, in each case, in any material respect, which have not been finally resolved;

 

(E) none of the Obligors has knowledge that any Material Intellectual Property is being infringed, violated, misappropriated or otherwise used by any other Person without the express authorization of Parent; and, without limiting the foregoing, none of the Obligors nor any of their Subsidiaries has put any other Person on notice of actual or potential infringement, violation or misappropriation of any Material Intellectual Property and none of the Obligors nor any of their Subsidiaries has initiated the enforcement of any Claim with respect to any Material Intellectual Property;

 

(F) all relevant current and former employees and contractors of each Obligor and each of its Subsidiaries who contributed within the scope of their employment or engagement, as applicable, to the creation or development of any Material Intellectual Property have executed written confidentiality and valid and enforceable invention assignment Contracts with such Obligor or such Subsidiary, as applicable, that irrevocably (to the extent permitted under applicable Law) assigns to such Obligor or such Subsidiary, as applicable, or its designee all rights of such employees and contractors to any such Material Intellectual Property;

 

(G) the Intellectual Property of the Obligors and their Subsidiaries, together with the lawful use of open source, freeware and third party licensed Intellectual Property by the Obligors and their Subsidiaries, is all the Intellectual Property necessary for the operation of the business of the Obligors and their Subsidiaries as it is currently conducted or as anticipated to be conducted;

 

(H) each Obligor and each of its Subsidiaries have made available to the Agent accurate and complete copies of all Material Agreements relating to Material Intellectual Property that have been requested by the Agent in writing; and

 

(I) each Obligor and each of its Subsidiaries have taken reasonable precautions to protect the secrecy, confidentiality and value of its Material Intellectual Property consisting of trade secrets and confidential information.

 

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(iii) With respect to the Patents of the Material Intellectual Property, except as set forth on Schedule 7.05(c), and without limiting the representations and warranties in Section 7.05(c)(ii):

 

(A) each of the issued claims in such issued, non-expired, non-lapsed, non-abandoned Patents is valid and enforceable;

 

(B) each inventor, including any Person who was an employee or contractor of an Obligor or any of its Subsidiaries, named in such Patents, has executed written Contracts with an Obligor or its predecessor-in-interest that properly and irrevocably assigns to such Obligor or its predecessor-in-interest all of such inventor’s rights, title and interest to any of the Inventions claimed in such Patents;

 

(C) all such Patents are in good standing and no such Patents, or the Inventions claimed in any such Patent, have been dedicated to the public except as a result of intentional decisions made by the Parent or any of its Subsidiaries;

 

(D) all prior art material to such Patents known to the Borrower was adequately disclosed to or considered by the respective patent offices during prosecution of such Patents to the extent required by applicable Law;

 

(E) subsequent to the issuance of such Patents, none of the Obligors nor any of their Subsidiaries nor any of their respective predecessors-in-interest, has filed any disclaimer or made or permitted any other voluntary reduction in the scope of the Inventions claimed in such Patents;

 

(F) (1) no allowable or allowed claim in such Patents is subject to any competing conception claims of allowable or allowed subject matter of any patent applications or patents of any third party, and such claims have not been the subject of any interference, and are not and have not been the subject of any patent office proceeding (other than prosecution of patent applications up to initially obtaining an issued patent) re-examination, opposition or any other post-grant proceedings, and (2) none of the Obligors nor any of their Subsidiaries has knowledge of any basis for any such interference, re-examination, opposition, inter partes review, post grant review or any other post-grant proceedings;

 

(G) none of the Patents owned by or licensed to an Obligor or any of its Subsidiaries have ever been finally adjudicated to be invalid, unpatentable or unenforceable for any reason in any administrative, arbitration, judicial or other proceeding, and, with the exception of publicly available documents in the applicable patent office recorded with respect to any Patents, none of the Obligors nor any of their Subsidiaries has received any written notice asserting that such Patents are invalid, unpatentable or unenforceable except as occurs in the normal course of prosecution by the relevant patent office with regard to pending patent applications; if any of such Patent is terminally disclaimed to another patent or patent application, all patents and patent applications subject to such terminal disclaimer are included in the Collateral;

 

(H) none of the Obligors nor any of their Subsidiaries has received an opinion, whether preliminary in nature or qualified in any manner, which concludes that a challenge to the validity or enforceability of any Patents owned by or licensed to an Obligor or any of its Subsidiaries is more likely than not to succeed;

 

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(I) none of the Obligors, nor any of their Subsidiaries nor any prior owner of any Patent, or any of their respective agents or representatives, has engaged in any conduct, or omitted to perform any necessary act, the result of which would invalidate or render unpatentable or unenforceable any Patent that constitutes Material Intellectual Property; and

 

(J) all maintenance fees, annuities, and the like due or payable on or with respect to any Patents have been timely paid or the failure to so pay could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.

 

(iv) The Obligors own or hold rights to all Material Intellectual Property to conduct all Product Commercialization and Development Activities relating to the Products as such activities are currently conducted or as anticipated to be conducted.

 

7.06 No Actions or Proceedings.

 

(a) Litigation. Except as specified on Schedule 7.06(a), there is no litigation, investigation or proceeding pending or, to the knowledge of any Obligor or any of its Subsidiaries, threatened, with respect to each Obligor and any of their Subsidiaries by or before any Governmental Authority or arbitrator that (i) could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or a Material Regulatory Event, or (ii) involves this Agreement, any other Loan Document, any Product or Product Commercialization and Development Activities, the Transactions, or any Material Intellectual Property.

 

(b) Environmental Matters. The operations and property of each Obligor and each of their Subsidiaries comply with all applicable Environmental Laws, except to the extent the failure to so comply (either individually or in the aggregate) could not reasonably be expected to result in Material Adverse Effect.

 

(c) Labor Matters. There are no strikes, lockouts or other material labor disputes against any Obligor or any of their Subsidiaries or, to the knowledge of each Obligor, threatened in writing against or affecting such Obligor or any of its Subsidiaries, and no material unfair labor practice complaint is pending against such Obligor or any of its Subsidiaries or, to the knowledge of such Obligor, threatened in writing against any of them before any Governmental Authority. Except as set forth on Schedule 7.06(c), none of the Obligors nor any of their Subsidiaries is a party to any collective bargaining agreements or similar Contracts, no union representation exists on any facilities of any Obligor or any of its Subsidiaries and none of the Obligors nor any of their Subsidiaries has any knowledge of any union organizing activities that are taking place.

 

7.07 Compliance with Laws and Agreements.

 

(a) Each Obligor and each of its Subsidiaries is in compliance with all applicable Laws and all Contracts binding upon it or its property, except (other than with respect to Material Intellectual Property, as covered in Section 7.05(c)) where the failure to do so could not individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or a Material Regulatory Event. No Event of Default has occurred and is continuing, or will occur as a result of, any Borrowing hereunder.

 

(b) Without limiting the generality of the foregoing, each Obligor and each of its Subsidiaries is in material compliance with all applicable Healthcare Laws and Healthcare Permits, and none of the Obligors nor any of their Subsidiaries has received written notice from any Governmental Authority of any material violation (or of any investigation, audit, or other proceeding involving allegations of any violation) of any Healthcare Laws, and no such investigation, inspection, audit or other proceeding involving allegations of any such violation has been, to the knowledge of such Obligor or any Subsidiary, as applicable, threatened in writing.

 

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(c) Each physician, other licensed healthcare professional, or any other Person who is in a position to refer patients or other business to an Obligor or any of its Subsidiaries (collectively, a “Referral Source”) who has a direct ownership, investment, or financial interest in such Obligor or any such Subsidiary paid fair market value for such ownership, investment or financial interest; any ownership or investment returns distributed to any Referral Source is in proportion to such Referral Source’s ownership, investment or financial interest; and no preferential treatment or more favorable terms were or are offered to such Referral Source compared to investors or owners who are not in a position to refer patients or other business. None of the Obligors nor any of their Subsidiaries, directly or indirectly, has or will guarantee a loan, make a payment toward a loan or otherwise subsidize a loan for any Referral Source including, without limitation, any loans related to financing the Referral Source’s ownership, investment or financial interest in any such Obligor or any such Subsidiary.

 

(d) Without limiting the generality of the foregoing, except where noncompliance individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect or a Material Regulatory Event, all financial relationships between or among an Obligor and its Subsidiaries, on the one hand, and any Referral Source, on the other hand (A) comply with all applicable Healthcare Laws including, without limitation, the Federal Anti-Kickback Statute, the Stark Law and other applicable anti-kickback and self-referral laws, whether U.S. or non-U.S.; (B) reflect fair market value, have commercially reasonable terms, and were negotiated at arm’s length; and (C) do not obligate any Referral Source to purchase, use, recommend or arrange for the use of any products or services of such Obligor or any of its Subsidiaries.

 

(e) None of the Obligors nor any of their Subsidiaries is debarred or excluded from participation under any state or federal health care program or under any federal Law, including any state or federal workers compensation programs.

 

(f) None of the Obligors nor any of their Subsidiaries is a party to any corporate integrity agreements, deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with, or imposed by, any Governmental Authority.

 

7.08 Taxes. Each Obligor and each of its Subsidiaries has timely filed or caused to be filed all income and other material Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (i) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which such Obligor or such Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (ii) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

7.09 Full Disclosure. None of the reports, financial statements, certificates or other written information furnished by or on behalf of the Obligors to the Agent or any Lender (other than information of a general economic or industry nature) in connection with the negotiation of this Agreement and the other Loan Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contained, as of the date such report, statement, or certificate was so furnished any material misstatement of material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect; provided that, with respect to projected financial information, each Obligor represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood by the Agent and the Lenders that such projected financial information is not to be viewed as facts, and that no assurances can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ from the projected results and such differences may be material).

 

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7.10 Investment Company Act and Margin Stock Regulation.

 

(a) Investment Company Act. None of the Obligors nor any of their Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.

 

(b) Margin Stock. None of the Obligors nor any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of the Loans will be used to buy or carry any Margin Stock in violation of Regulation T, Regulation U or Regulation X.

 

7.11 Solvency. Parent and its Subsidiaries, on a consolidated basis, are, and, immediately after giving effect to the Borrowing and the use of proceeds thereof, will be Solvent.

 

7.12 Equity Holders, Subsidiaries and Other Investments.

 

(a) Set forth on Schedule 7.12(a) is a complete and correct list of all direct and indirect Subsidiaries of Parent. Each such Subsidiary is duly organized and validly existing under the jurisdiction of its organization shown in Schedule 7.12(a), and the percentage ownership by Parent of each such Subsidiary thereof is as shown in Schedule 7.12(a).

 

(b) Set forth on Schedule 7.12(b) is a complete and correct list of all other Equity Interests owned or held by Parent or any of its direct or indirect Subsidiaries in any Person that does not qualify as a direct or indirect Subsidiary of Parent. Schedule 7.12(b) also sets forth, in reasonable detail, the type of Equity Interest held by each Obligor in such other Person and the fully-diluted percentage ownership held beneficially by Parent or one or more of its Subsidiaries, as the case may be, in such other Person.

 

7.13 Secured Indebtedness. Set forth on Schedule 7.13 is a complete and correct list of all outstanding Indebtedness of Parent and each of its Subsidiaries outstanding as of the Closing Date (after giving effect to the Transactions contemplated to occur on or prior to the Closing Date) that (i) will remain outstanding immediately after the making of the Loans and the application of proceeds therefrom on the Closing Date and (ii) is secured by a Lien on assets or property of the Parent or any of its Subsidiaries.

 

7.14 Material Agreements. Set forth on Schedule 7.14 is a complete and correct list of (i) each Material Agreement and (ii) each Contract creating or evidencing any Material Indebtedness, in each case, as of the Closing Date. Accurate and complete copies of each Material Agreement disclosed on such schedule have been made available to the Agent; provided, however, that to the extent applicable confidentiality obligations prohibit the Borrower from sharing all or a portion of such Contract, Parent shall provide a reasonably detailed summary of such Material Agreement. None of the Obligors nor any of their Subsidiaries is in material default under any such Material Agreement, and none of the Obligors has knowledge of any material default by any counterparty to any such Contract and there are no pending or, to any Obligor’s knowledge, threatened (in writing) material Claims against any Obligor or any of its Subsidiaries asserted by any other Person relating to any such Contract, including any Claims of breach or default under any such Contract. None of the Obligors nor any of their Subsidiaries has received any information from, or Claim by, any Person that any Material Agreement is breached or is in default. There are no outstanding (and none of the Obligors has knowledge of), any threatened (in writing) material disputes or disagreements with respect to any Material Agreement. Except as otherwise disclosed on Schedule 7.14, all such Material Agreements are in full force and effect without material modification from the form in which the same were disclosed to the Lenders or other modifications not expressly prohibited by Section 9.12.

 

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7.15 Restrictive Agreements. Except as set forth on Schedule 7.15, none of the Obligors nor any of their Subsidiaries is subject to any Restrictive Agreement, except those permitted under Section 9.11.

 

7.16 Real Property. Except as set forth on Schedule 7.16, none of the Obligors nor any of their Subsidiaries owns or leases (as tenant thereof) (excluding any co-working arrangements) any real property.

 

7.17 Pension Matters. Schedule 7.17 sets forth a complete and correct list of, and that separately identifies, (i) all Title IV Plans, and (ii) all Multiemployer Plans. Except for those that could not, in the aggregate, reasonably be expected to have a Material Adverse Effect, (x) each Benefit Plan and Foreign Pension Plan is in compliance with all applicable provisions of ERISA, the Code or other applicable Law, (y) there are no existing or pending or, to the knowledge of any Obligor, threatened Claims (other than routine claims for benefits in the normal course of business), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which an Obligor or any Subsidiary thereof incurs or otherwise has or could reasonably be expected to have an obligation or any liability or Claim and (z) no ERISA Event has occurred or is reasonably expected to occur in connection with which obligations and liabilities (contingent or otherwise) remain outstanding. Each Obligor and each of its ERISA Affiliates has met all applicable requirements under the ERISA Funding Rules with respect to each Title IV Plan, and no waiver of the minimum funding standards under the ERISA Funding Rules has been applied for or obtained. As of the most recent valuation date for any Title IV Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least sixty percent (60%), and none of the Obligors, nor any of their Subsidiaries nor any of their ERISA Affiliates knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage to fall below sixty percent (60%) as of the most recent valuation date. Except as would not (either individually or in the aggregate) reasonably be expected to have a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur in connection with which obligations and liabilities (contingent or otherwise) remain outstanding. No ERISA Affiliate would have any Withdrawal Liability as a result of a complete withdrawal from any Multiemployer Plan on the date this representation is made.

 

7.18 Priority of Obligations. No monetary Obligation arising hereunder or under any Loan Document, or arising in connection herewith or therewith, is subordinated to any other Indebtedness, except as may from time to time be agreed, be consented to or otherwise result from the action of the Agent or any Lender.

 

7.19 Regulatory Approvals.

 

(a) Each Obligor and each of its Subsidiaries hold, and will continue to hold, either directly or through licensees and agents, all Regulatory Approvals, including all Healthcare Permits, necessary or required for such Obligor and each of its Subsidiaries to conduct their respective operations and businesses, including all Product Commercialization and Development Activities, in the manner currently conducted and as anticipated to be conducted in the ordinary course of business.

 

(b) Set forth on Schedule 7.19(b) is a complete and accurate list of all Regulatory Approvals of the type described in Section 7.19(a) above, which schedule sets forth the Obligor or Subsidiary that holds such Regulatory Approval and briefly explains the purpose of such Regulatory Approval. All such Regulatory Approvals are (i) legally and beneficially owned or held exclusively by the applicable Obligor or Subsidiary, as the case may be, free and clear of all Liens other than Permitted Liens, (ii) validly registered and on file with the applicable Regulatory Authority, in compliance in all material respects with all registration, filing and maintenance requirements (including any fee requirements) thereof, and (iii) valid, enforceable, in good standing, and in full force and effect with the applicable Regulatory Authority in all material respects. All required notices, registrations, listing, supplemental applications or notification reports (including field alerts or other reports of adverse experiences) and other required filings have been filed with the appropriate Regulatory Authority, and all such filings are complete and correct and are in compliance in all material respects with all applicable Laws. Parent and each of its Subsidiaries have disclosed to the Agent all such regulatory filings and all material communications between representatives of the Obligors and each of their Subsidiaries and any Regulatory Authority.

 

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7.20 Transactions with Affiliates. Except as set forth on Schedule 7.20, none of the Obligors nor any of their Subsidiaries has entered into, renewed, extended or been a party to, any transaction (including the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind, other than services of any director, officer or employee of such Obligor or Subsidiary, as applicable) with any Affiliate on the Closing Date in violation of Section 9.10.

 

7.21 Sanctions. None of the Obligors nor any of their Subsidiaries, nor, to the knowledge of each Obligor, any of their respective directors, officers, or employees nor, to the knowledge of each Obligor, any agents or other Persons acting on behalf of any of the foregoing (i) is currently the target of any Sanctions, (ii) is located, organized or residing in any Designated Jurisdiction, (iii) is or has been (within the previous five (5) years) engaged in any transaction with, or for the benefit of, any Person who is now or was then the target of Sanctions or who is located, organized or residing in any Designated Jurisdiction or (iv) is or has ever been in violation of or subject to an investigation relating to Sanctions. No Loan, nor the proceeds from any Loan, has been or will be used, directly or indirectly, to lend, contribute or provide to, or has been or will be otherwise made available to fund, any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including the Agent, the Lenders and their Affiliates) of Sanctions.

 

7.22 Anti-Corruption. None of the Obligors nor any of their Subsidiaries, nor, to the knowledge of each Obligor, any of their respective directors, officers or employees nor, to the knowledge of each Obligor, any agents or other Persons acting on behalf of any of the foregoing, directly or indirectly, has (i) violated or is in violation of any applicable anti-corruption Law, (ii) made, offered to make, promised to make or authorized the payment or giving of, directly or indirectly, any Prohibited Payment or (iii) been subject to any investigation by any Governmental Authority with regard to any actual or alleged Prohibited Payment.

 

7.23 Deposit and Disbursement Accounts. Schedule 7.23 contains a list of all banks and other financial institutions at which each Obligor and each of its Subsidiaries maintains Deposit Accounts, Securities Accounts, Commodity Accounts, lockboxes, or other similar accounts, and such Schedule correctly identifies the name, address and telephone number of each bank or financial institution, the name in which the account is held, the type of account, and the complete account number therefor.

 

7.24 Royalties and Other Payments. Except as set forth on Schedule 7.24, none of the Obligors nor any of their Subsidiaries is obligated, pursuant to any Contract or otherwise, to pay any royalty, milestone payment, deferred payment or any other contingent payment in respect of any Product.

 

7.25 Non-Competes. None of the Obligors nor any of their Subsidiaries nor any of their respective directors, officers or employees is subject to a non-compete agreement that prohibits or will interfere with any of the Product Commercialization and Development Activities, including the development, commercialization or marketing of any Product.

 

7.26 Internal Controls. Parent acknowledges that its management is responsible for the preparation and fair presentation of the financial statements of Parent and each of its Subsidiaries provided to the Agent and the Lenders pursuant to Sections 8.01(b) and 8.01(c), in each case, in accordance with GAAP. Parent has designed, implemented and maintained internal controls relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.

 

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SECTION 8
AFFIRMATIVE COVENANTS

 

The Obligors jointly and severally covenant and agree, for the benefit of the Agent and the Lenders, that until the Commitments have expired or been terminated and all Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made) have been paid in full in cash:

 

8.01 Financial Statements and Other Information. Parent shall furnish to the Agent (with sufficient copies for each Lender):

 

(a) Within ten (10) days after the end of each calendar month of each fiscal year, proof of the Borrower’s compliance with Section 10.01, which proof may be in the form of copies of one or more bank statements demonstrating such compliance, accompanied by a certification thereof from the chief financial officer of the Borrower.

 

(b) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year, (i) an unaudited consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal quarter, and (ii) the related unaudited consolidated statements of income, shareholders’ equity and cash flows of Parent and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case, prepared in accordance with GAAP consistently applied (subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes), all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of Parent stating that such financial statements (x) fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and (y) have been prepared in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “EDGAR”.

 

(c) As soon as available and in any event within ninety (90) days after the end of each fiscal year, (i) the audited consolidated balance sheet of Parent and its Subsidiaries as of the end of such fiscal year, and (ii) the related audited consolidated statements of income, shareholders’ equity and cash flows of Parent and its Subsidiaries for such fiscal year, in each case prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of any “Big Four” accounting firm or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and in the case of such consolidated financial statements, certified by a Responsible Officer of Parent; provided that documents required to be furnished pursuant to this Section 8.01(c) shall be deemed furnished on the date that such documents are publicly available on “EDGAR”

 

(d) (i) together with the financial statements required pursuant to Sections 8.01(b) and 8.01(c), a Compliance Certificate delivered by the chief financial Responsible Officer of Parent as of the end of the applicable accounting period, substantially in the form of Exhibit E including a summary of Revenue generated by the Products (in reasonable detail and in a manner that segregates Revenue by type of Product) and which evidences the Obligors’ compliance with Section 10.02 and, with respect to the financial statements delivered pursuant to Section 8.01(c), details of any issues that are material that are raised by Parent’s auditors and (ii) together with the financial statements required pursuant to Sections 8.01(b) and 8.01(c), a management discussion and analysis, prepared in writing and in reasonable detail, discussing Parent’s financial condition and results of operations as set forth in such financial statements.

 

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(e) As soon as available and in any event no later than sixty (60) days following the end of each fiscal year of Parent, copies of an annual budget (or equivalent) on a consolidated basis for Parent and its Subsidiaries, approved by Parent’s Board, for the then current fiscal year, in form reasonably satisfactory to the Agent, together with the Projections used in the preparation thereof, accompanied by a certificate of the chief financial officer of Parent certifying (in his or her capacity as an officer of Parent and not in his or her individual capacity) that such Projections are based on reasonable estimates, information and assumptions and that such Responsible Officer has no reason to believed that such Projections are incorrect or misleading in any material respect.

 

(f) Promptly, and in any event within five (5) Business Days after receipt thereof by Parent or any of its Subsidiaries, copies of each material notice or other material correspondence received from any securities regulator or exchange to the authority of which Parent may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of Parent or any such Subsidiary; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “EDGAR”.

 

(g) Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to all the stockholders of Parent or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Parent or any of its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which Parent or any such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “EDGAR”.

 

(h) The information regarding insurance maintained by Parent and its Subsidiaries as required under Section 8.05.

 

(i) As soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $500,000, written notice thereof from a Responsible Officer of Parent which notice shall include a statement setting forth details of such Claim.

 

(j) Such other information respecting the operations, properties, business, liabilities or condition (financial and otherwise) of Parent and each of its Subsidiaries (including with respect to the Collateral) as the Agent or any Lender may from time to time reasonably request.

 

Each of the Parent and the Borrower hereby acknowledges that the Agent or the Lenders may not wish to receive material non-public information with respect to the Parent, the Borrower or their Affiliates, or the respective securities of any of the foregoing, and the Agent, the Lenders or their respective personnel may be engaged in investment and other market-related activities with respect to such Persons’ securities. Notwithstanding anything to the contrary in this Agreement, the Parent and the Borrower covenant and agree that, except for the information required pursuant to clauses (b), (c), (d) and (j) above, neither it, nor any Person acting on its behalf, will provide, or become obligated to provide, the Agent or any Lender or their respective representatives or agents with any other information that the Parent or the Borrower reasonably believes constitutes material non-public information, unless prior thereto, such receiving Person shall have confirmed to the Parent or the Borrower, as applicable, in writing that it consents to receive such information. The Parent and the Borrower hereby acknowledge that each Lender is relying on the foregoing covenant in effecting transactions in securities of the Parent.

 

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8.02 Notices of Material Events. Parent and the Borrower shall furnish to the Agent written notice of each of the following within the time period specified therein (or, if no such time period is specified, on or within ten (10) days (or such longer or shorter period as may be expressly set forth below) after any Responsible Officer of Parent or the Borrower first learns of or acquires knowledge with respect to any of the below events or circumstances):

 

(a) The occurrence of any Event of Default.

 

(b) The occurrence of any event with respect to any property or assets of Parent or any of its Subsidiaries resulting in a Loss, which notice shall include whether such loss is covered by insurance or if the insurance carrier has disclaimed coverage of such Loss, aggregating $1,000,000 (or the Equivalent Amount in other currencies) or more.

 

(c) Any Claim, action, suit, notice of violation, hearing, investigation or other proceedings pending, or to Parent knowledge, threatened (in writing) against or affecting Parent or any of its Subsidiaries or with respect to the ownership, use, maintenance and operation of their respective businesses, operations or properties, whether made by a Governmental Authority or other Person that, if adversely determined could reasonably be expected to result in a Material Adverse Effect.

 

(d) (i) On or prior to the date of any filing by any ERISA Affiliate of any notice of intent to terminate any Title IV Plan, a copy of such notice and (ii) promptly, and in any event within ten (10) days, after any Responsible Officer of any ERISA Affiliate knows or has reason to know (A) that an ERISA Event has occurred or is reasonably expected to occur or (B) that a request for a minimum funding waiver under Section 412 of the Code has been filed with respect to any Title IV Plan or Multiemployer Plan, a notice (which may be made by telephone if promptly confirmed in writing) describing such waiver request and any action that any ERISA Affiliate proposes to take with respect to either of the foregoing, together with a copy of any notice filed with the PBGC or the IRS pertaining thereto.

 

(e) (i) The termination of any Material Agreement other than in accordance with its terms, including as a result of a breach or default; (ii) the receipt by Parent or any of its Subsidiaries of any material notices of default under any Material Agreement that could give rise to an early termination thereof (and a copy thereof); (iii) the entering into of any new Material Agreement by Parent or any of its Subsidiaries (and a copy thereof); or (iv) any material amendment to a Material Agreement (and a copy thereof).

 

(f) As, when and to the extent required therein, the reports and notices as required by the Security Documents.

 

(g) Within thirty (30) days of the date thereof, or, if earlier, on the date of delivery of any financial statements pursuant to Section 8.01, notice of any material change in accounting policies or financial reporting practices by the Obligors; provided that disclosure in the notes to such financial statements, if any, shall be deemed to satisfy the requirements of this Section 8.02(g).

 

(h) Notice of any labor controversy resulting in or threatening to result in any strike, work stoppage, boycott, shutdown or other material labor disruption against or involving Parent or any of its Subsidiaries which could reasonably be expected to result in a Material Adverse Effect.

 

(i) Any licensing agreement or similar arrangement entered into by Parent or any of its Subsidiaries in connection with any infringement or alleged infringement of any Material Intellectual Property of another Person.

 

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(j) Concurrently with the delivery of a Compliance Certificate pursuant to Section 8.01(d), notice of the creation, development or other acquisition of any Intellectual Property by Parent or any of its Subsidiaries after the Closing Date and during such prior fiscal quarter or fiscal year, as the case may be, for which such financial statements were delivered, which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, or with any other equivalent foreign Governmental Authority.

 

(k) Any change to any Obligor’s ownership of Deposit Accounts, Securities Accounts and Commodity Accounts (in each case, other than Excluded Accounts), by delivering to the Agent, a notice setting forth a complete and correct list of all such accounts as of the date of such change.

 

(l) The acquisition by any Obligor or any of its Subsidiaries, in a single or series or related transactions, of any fee interest in any real property having a fair market value in excess of $500,000.

 

(m) Concurrently with the delivery thereof to RTW, copies of all notices and other reports required to be delivered by the Borrower to RTW under the RTW Royalty Financing Agreement and, to the extent that the Additional RTW Royalty Financing Agreement has been executed by RTW and [Allurion] pursuant to the terms of the Side Letter, the Additional RTW Royalty Financing Agreement.

 

(n) The occurrence of any material product recalls, safety alerts, corrections, withdrawals, marketing suspensions, removals or the like conducted, to be undertaken or issued by an Obligor, any Subsidiary thereof or their respective suppliers whether or not at the request, demand or order of any Governmental Authority or otherwise with respect to any Product, or any basis for undertaking or issuing any such action or item.

 

(o) The occurrence or existence of any event, circumstance, act or omission that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect or a Material Regulatory Event.

 

Each notice delivered under this Section 8.02 (other than any notice delivered pursuant to Section 8.02(e)(iii) or (iv)) shall be accompanied by a statement of a Responsible Officer of Parent and the Borrower setting forth summary details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Nothing in this Section 8.02 is intended to waive, consent to or otherwise permit any action or omission that is otherwise prohibited by this Agreement or any other Loan Document.

 

Documents required to be delivered pursuant to Section 8.01 and this Section 8.02 (i) (to the extent any such documents are included in materials otherwise filed with the U.S. Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at any website address of the Borrower, or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third- party website or whether sponsored by the Agent). The Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

Each of the Parent and the Borrower hereby acknowledges that the Agent or the Lenders may not wish to receive material non-public information with respect to the Parent, the Borrower or their Affiliates, or the respective securities of any of the foregoing, and the Agent, the Lenders or their respective personnel may be engaged in investment and other market-related activities with respect to such Persons’ securities. Notwithstanding anything to the contrary in this Agreement, the Parent and the Borrower covenant and agree that, except for the information required pursuant to clauses (a) above, neither it, nor any Person acting on its behalf, will provide, or become obligated to provide, the Agent or any Lender or their respective representatives or agents with any other information that the Parent or the Borrower reasonably believes constitutes material non-public information, unless prior thereto, such receiving Person shall have confirmed to the Parent or the Borrower, as applicable, in writing that it consents to receive such information. The Parent and the Borrower hereby acknowledge that each Lender is relying on the foregoing covenant in effecting transactions in securities of the Parent.

 

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8.03 Existence; Conduct of Business. Each Obligor shall, and shall cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and all Governmental Approvals necessary or material to the conduct of its business; provided that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under Section 9.03.

 

8.04 Payment of Obligations. Each Obligor shall, and shall cause each of its Subsidiaries to, pay and discharge its obligations, including (i) all Taxes, fees, assessments and governmental charges or levies imposed upon it or upon its properties or assets prior to the date on which penalties attach thereto, and all lawful Claims for labor, materials and supplies which, if unpaid, might become a Lien (other than a Permitted Lien) upon any properties or assets of such Obligor or any of its Subsidiaries, except to the extent such Taxes, fees, assessments or governmental charges or levies, or such claims are being contested in good faith by appropriate proceedings and are adequately reserved against in accordance with GAAP, and (ii) all other lawful Claims which, if unpaid, would by Law become a Lien upon any properties or assets of such Obligor or any of its Subsidiaries, other than any Permitted Lien.

 

8.05 Insurance. Each Obligor shall, and shall cause each of its Subsidiaries to maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations. Upon the reasonable request of the Agent, Parent shall furnish to the Agent from time to time: information as to the insurance carried by such Obligor and each of its Subsidiaries and, if so requested, copies of all such insurance policies. The Obligors shall use commercially reasonable efforts to ensure, or cause others to ensure, that all insurance policies required under this Section 8.05 shall provide that they shall not be terminated or cancelled nor shall any such policy be materially changed in a manner adverse to the insured Person without at least thirty (30) days’ (or ten (10) days’ for nonpayment of premium) prior written notice to the applicable Obligor and the Agent. Receipt of notice of cancellation or modification of any such insurance policies or reduction of coverage or amounts thereunder shall entitle any Secured Party to renew any such policies, cause the coverage and amounts thereof to be maintained at levels required pursuant to the first sentence of this Section 8.05 or otherwise to obtain similar insurance in place of such policies, in each case at the expense of the applicable Obligor (payable on demand). The amount of any such expenses shall accrue interest at the Default Rate if not paid on demand and shall constitute “Obligations.”

 

8.06 Books and Records; Inspection Rights. Each Obligor shall, and shall cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. Each Obligor shall, and shall cause each of its Subsidiaries to, permit any representatives designated by the Agent or any Lender, upon reasonable prior written notice, to, during normal business hours, visit and reasonably inspect its properties, to reasonably examine and make extracts from its books and records (excluding records subject to attorney-client privilege, subject to confidentiality agreements with third parties that preclude disclosure to any Secured Party (acting in such capacity) or subject to confidentiality restrictions pursuant to Law), and to discuss its affairs, finances and condition (financial or otherwise) with its officers, all at such reasonable times (but not more often than once per year unless an Event of Default has occurred and is continuing) as the Agent or the Lenders may reasonably request. Each Obligor shall pay all reasonable costs and expenses of all such inspections.

 

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8.07 Compliance with Laws and Other Obligations. Each Obligor shall, and shall cause each of its Subsidiaries to, (i) comply in all material respects with all applicable Laws and applicable Governmental Approvals (including Environmental Laws and all Healthcare Laws); and (ii) maintain in full force and effect, remain in compliance in all material respects with, and perform in all material respects all terms of outstanding Material Agreements and all Healthcare Permits.

 

8.08 Maintenance of Properties, Etc. Each Obligor shall, and shall cause each of its Subsidiaries to, maintain and preserve all of its assets and properties, whether tangible or intangible, relating to its Products or Product Commercialization and Development Activities or otherwise, necessary in the proper conduct of its business in good working order and condition in all material respects in accordance with the general practice of other Persons of similar character and size, ordinary wear and tear and damage from casualty or condemnation excepted.

 

8.09 Licenses. Each Obligor shall, and shall cause each of its Subsidiaries to, obtain and maintain all Governmental Approvals (including all Healthcare Permits) necessary in connection with the execution, delivery and performance of the Loan Documents, the consummation of the Transactions or the operation and conduct of its business and ownership of its properties (including its Product Commercialization and Development Activities).

 

8.10 Action under Environmental Laws. Each Obligor shall, and shall cause each of its Subsidiaries to, upon becoming aware of the release of any Hazardous Materials or the existence of any environmental liability under applicable Environmental Laws with respect to their respective businesses, operations or properties, take all actions, at their cost and expense, as shall be necessary or advisable to investigate and clean up the condition of their respective businesses, operations or properties, including all required removal, containment and remedial actions, to restore their respective businesses, operations and properties to a condition in compliance with applicable Environmental Laws.

 

8.11 Use of Proceeds. The proceeds of the Loans shall be used only as provided in Section 2.04. Without limiting the foregoing, no part of the proceeds of the Loans shall be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, Regulation U and Regulation X.

 

8.12 Certain Obligations Respecting Subsidiaries; Further Assurances.

 

(a) Subsidiary Guarantors. Parent and the Borrower shall take such action from time to time as shall be necessary to ensure that (x) it and each of its Subsidiaries that is a party to this Agreement as of the Closing Date will be and will remain an Obligor and Subsidiary Guarantor hereunder (except as otherwise permitted by Section 9.03), and (y) each of its other Subsidiaries (other than any Excluded Subsidiary), whether direct or indirect, now existing or hereafter created, will, within (x) thirty (30) days of becoming a Subsidiary organized under the laws of the United States or (y) sixty (60) days of becoming a Foreign Subsidiary (in each case, as may be extended by the Agent in its reasonably discretion) or ceasing to constitute an Excluded Subsidiary, become an “Obligor” and a “Subsidiary Guarantor” pursuant to this Section 8.12. Without limiting the generality of the foregoing, if (i) the Parent or any of its Subsidiaries form or acquire any new Subsidiary (other than any Excluded Subsidiary), (ii) a Subsidiary ceases to constitute an Excluded Subsidiary or (iii) the Agent designates a Subsidiary as a Specified Subsidiary, then Parent and the Borrower shall (unless otherwise agreed by the Agent in its sole discretion), within thirty (30) days (or sixty (60) days, as the context may require) of such event:

 

(i) cause such Subsidiary to become an “Obligor” and a “Subsidiary Guarantor” hereunder, a “Grantor” (or the equivalent thereof) under the applicable Security Documents, and a “Subsidiary Party” under the Intercompany Subordination Agreement;

 

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(ii) take such action or cause such Subsidiary to take such action (including joining the Security Agreement or the applicable Security Documents and delivering certificated Equity Interests together with undated transfer powers executed in blank, applicable control agreements, and other instruments) as shall be necessary or reasonably desirable by the Agent to create and perfect, in favor of the Agent, for the benefit of the Secured Parties valid and enforceable first priority Liens (subject to Permitted Liens) on the Collateral of such new Subsidiary as collateral security for the Obligations hereunder;

 

(iii) to the extent that the parent of such Subsidiary is not a party to the Security Agreement or has not otherwise pledged Equity Interests in its Subsidiaries in accordance with the terms of the Security Agreement and this Agreement, cause such parent of such Subsidiary to execute and deliver a pledge agreement in favor of the Agent, for the benefit of the Secured Parties, in respect of all outstanding issued Equity Interests of such Subsidiary for the purpose of creating and perfecting, in favor of the Agent for the benefit of the Secured Parties, a valid and perfected first priority Lien (subject to Permitted Liens) on such Equity Interests; and

 

(iv) deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by each Obligor pursuant to Section 6.01 or as the Agent shall have reasonably requested.

 

(b) Further Assurances.

 

(i) Each Obligor shall, and shall cause each of its direct or indirect Subsidiaries (including any newly formed or newly acquired Subsidiaries) to take such action from time to time as shall reasonably be requested by the Agent to effectuate the purposes and objectives of this Agreement (including this Section 8.12) and the applicable Security Documents.

 

(ii) In the event that Parent or any of its Subsidiaries holds or acquires Intellectual Property during the term of this Agreement or any other material assets or properties, then, upon the written request of the Agent, Parent or any such Subsidiary shall take any action as shall be necessary or reasonably desirable to ensure that the provisions of this Agreement and the Security Agreement shall apply thereto and any such Intellectual Property or other assets or properties shall constitute part of the Collateral under the Security Documents.

 

(iii) Without limiting the generality of the foregoing, within ten (10) Business Days (or such longer period that the Agent and the Borrower reasonably and mutually agree) following written request from the Agent, Parent and the Borrower shall cause each Person that is required to be a Subsidiary Guarantor or an Obligor hereunder to take such action from time to time (including executing and delivering such assignments, security agreements, control agreements and other instruments, and delivering certificated Equity Interests together with undated transfer powers executed in blank) as shall be reasonably requested by the Agent to create, in favor of the Secured Parties, a first priority perfected security interests and Lien (subject to Permitted Liens) in substantially all of the assets and property of such Person as collateral security for the Obligations; provided that any such security interest or Lien shall be subject to the relevant requirements of the applicable Security Documents.

 

(iv) In the event that the Borrower delivers a notice to the Agent pursuant to Section 8.02(l) in respect of real property with a value in excess of $500,000, upon the written request of the Agent, Parent or any such Subsidiary shall execute and deliver a Mortgage with respect to such acquired real property to secure the Obligations.

 

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(c) Costs and Benefits. Notwithstanding any term or provision of this Section 8.12 to the contrary, without limiting the right of the Agent or the Lenders to require a Lien or a security interest in the Equity Interests of, or guaranty from, any newly acquired or created Subsidiary of Parent, or a Lien or security interest on any assets or properties of Parent or any of its Subsidiaries, so long as no Event of Default has occurred and is continuing, Parent and the Borrower may request in writing to the Agent that the Majority Lenders waive the requirements of this Section 8.12 to provide a Lien, security interest or guaranty, as the case may be, due to the cost or burden thereof to Parent and its Subsidiaries (when taken as a whole) being unreasonably excessive relative to the benefit that would inure to the Secured Parties, and describing such cost or burden in reasonable detail. Upon receipt of any such written notice, the Agent shall review and consider such request with the Lenders in good faith and, within five (5) Business Days of receipt of such request, the Majority Lenders (after consultation with the Agent) shall determine in their sole but commercially reasonable discretion, and notify Parent and the Borrower of such determination, whether the Majority Lenders will grant such request for a waiver. With respect to any Subsidiary for which the requirement to provide a Lien, security interest or Guaranty, as the case may be, has been waived by the Agent and the Majority Lenders in accordance with this Section 8.12(c), such waiver may be terminated by the Agent and the Majority Lenders if they determine in their sole but commercially reasonable discretion that the cost or burden of providing such Lien, security interest or Guaranty is no longer unreasonably excessive relative to the benefits that would inure to the Secured Parties. If such waiver is terminated, such Subsidiary shall be required to comply with the requirements of this Section 8.12.

 

8.13 Patent Prosecution Workplan. The Obligors shall work in good faith to comply with the Patent Prosecution Workplan in all material respects. The Agent hereby agrees that no information gained in connection with the development or implementation of the Patent Prosecution Workplan (a) will be used to institute a cause of action against the Parent or its Subsidiaries in any court or legal proceeding, or (b) will be shared with any Competitor or Person seeking to become a Competitor or (c) will be used by the Agent or any of its Affiliates for any purpose other than in connection with the development and implementation of the Patent Prosecution Workplan.

 

8.14 Intellectual Property. In the event that an Obligor or any of its Subsidiaries creates, develops or acquires Intellectual Property during the term of this Agreement, then the applicable provisions of this Agreement shall automatically apply thereto and any such Intellectual Property shall automatically constitute part of the Collateral under the Security Documents (other than to the extent such Intellectual Property constitutes an Excluded Asset), without further action by any party, in each case from and after the date of such creation, development, or acquisition (except that any applicable representations or warranties of any Obligor shall apply to any such Intellectual Property only from and after the date, if any, subsequent to such acquisition that such representations and warranties are brought down or made anew as provided herein).

 

8.15 Maintenance of Regulatory Approvals, Contracts, Intellectual Property, Etc. Each Obligor shall, and shall cause each of its Subsidiaries (to the extent applicable) to, (i) use commercially reasonable best efforts to prepare, execute, deliver and file any and all agreements, documents or instruments, and to pay any costs and expenses, that are necessary or desirable to secure all material Regulatory Approvals, Material Agreements, Material Intellectual Property, Healthcare Permits and other rights, interests or assets (whether tangible or intangible) reasonably necessary for the operations of such Person’s business, including any Product Commercialization and Development Activities, (ii) maintain in full force and effect, and pay all costs and expenses relating to, all such Regulatory Approvals, Material Agreements, Healthcare Permits and Material Intellectual Property owned, used or controlled by such Obligor or any such Subsidiary that are used in or reasonably necessary for the operations of such Person’s business, including any Product Commercialization and Development Activities, (iii) promptly after obtaining knowledge thereof, notify the Agent of any infringement or violation by any Person of the Borrower’s or any such Subsidiaries’ Material Intellectual Property, and take commercially reasonable efforts to pursue any such infringement or other violation, (iv) use commercially reasonable efforts to pursue and maintain in full force and effect legal protection for all new Material Intellectual Property created, developed or acquired by such Obligor or any of its Subsidiaries, as the case may be, that is necessary for the operations of the business of such Person, or in connection with any Product Commercialization and Development Activities relating to any Product, and (v) promptly after obtaining knowledge thereof, notify the Agent of any written Claim by any Person that the conduct of the business of such Obligor or any of its Subsidiaries, including in connection with any Product Commercialization and Development Activities, has infringed upon any Intellectual Property of such Person.

 

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8.16 ERISA and Foreign Pension Plan Compliance. Each Obligor shall, and shall cause each of its Subsidiaries to, comply in all material respects with the provisions of ERISA or applicable Law with respect to any Plans or Foreign Pension Plans to which Parent or any such Obligor is a party as an employer.

 

8.17 Cash Management. Each Obligor shall, and shall cause each of its Subsidiaries to:

 

(a) maintain at all times all Deposit Accounts, Securities Accounts, Commodity Accounts, lockboxes and similar accounts (other than Excluded Accounts) to be held by each Obligor with a bank or financial institution that has executed and delivered to and in favor of the Agent a customary “springing” account control agreement, in form and substance reasonably acceptable to the Agent (each such Deposit Account, Securities Account, Commodity Account, lockbox or similar account, a “Controlled Account”);

 

(b) maintain each such Controlled Account as a cash collateral account, with each such cash collateral account and all cash, checks and other similar items of payment held in any such account to be Collateral securing payment of the Obligations, and each Obligor shall have granted a Lien and security interest to the Agent, for the benefit of the Secured Parties, over such Controlled Accounts;

 

(c) deposit promptly, and in any event no later than five (5) Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all accounts receivable, Contracts or any other rights and interests into one or more Controlled Accounts or Excluded Accounts; and

  

(d) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Agent, direct all payments constituting proceeds of accounts receivable to be directed into lockbox accounts pursuant to agreements in form and substance reasonably satisfactory to the Agent.

 

8.18 Conference Calls. After delivery of the financial statements pursuant to Sections 8.01(b) and 8.01(c), at the request of the Agent, the Borrower shall cause its chief financial officer to participate in conference calls with the Agent and the Lenders to discuss, among other things, the financial condition of each Obligor and any financial or earnings reports; provided that such conference calls shall be held at reasonable times during normal business hours and, so long as no Event of Default has occurred and is continuing, not more frequently than once after delivery of each such financial statement.

 

8.19 Board Observation Rights. The Agent from time to time, at its option and in its sole discretion, may require that the Parent allow one representative designated by the Agent to attend and participate solely as a non-voting observer in all meetings of the Board of the Parent (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”). The Parent shall (i) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the Board of the Parent, (ii) provide to the Board Observer all notices, documents and information (including proposed written consents) furnished to the Board of the Parent at the same time and in the same manner furnished to such members, (iii) permit the Board Observer to participate by telephone in each Board Meeting, (iv) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the Board of the Parent and (v) provide the Board Observer with copies of all written consents duly passed by the Board of the Parent. Borrower shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings. The Parent shall indemnify the Board Observer to the same extent provided by the Parent to its directors. Notwithstanding the foregoing, the Parent may exclude the Board Observer from access to any material or meeting or portion thereof if: (i) the Board of the Parent concludes in good faith, upon advice of its counsel, that such exclusion is necessary to preserve the attorney-client privilege between the Parent or any of its Affiliates and its counsel or (ii) such exclusion is necessary to avoid a conflict of interest between the Parent on the one hand and the Lenders on the other; provided that the Board Observer may only be excluded from access to the portion of such material or meeting (x) as is necessary to protect such attorney-client privilege or (y) as is necessary to avoid such conflict of interest, as the case may be.

 

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8.20 Litigation Cooperation. The Parent shall, and shall cause each of its Subsidiaries to use commercially reasonable efforts to confer with the Agent, and make reasonably available to the Agent, its (and its Subsidiaries’) officers, employees, agents, books and records, without expense to the Agent, prior to prosecuting or defending against any third party suit or proceeding in respect of Patents instituted by or against the Parent or any of its Subsidiaries.

 

8.21 Post-Closing Covenants. The Borrower shall complete or shall cause to be completed each of the items set forth on Schedule 8.20 in the timeframes set forth therein.

 

SECTION 9
NEGATIVE COVENANTS

  

The Obligors jointly and severally covenant and agree, for the benefit of the Agent and the Lenders that until the Commitments have expired or been terminated and all Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made) have been paid in full in cash:

 

9.01 Indebtedness. The Obligors shall not, and shall not permit any of their Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, whether directly or indirectly, except for the following:

 

(a) the Obligations;

 

(b) Indebtedness existing as of the Closing Date (after giving effect to the Transactions contemplated to occur on or prior to the Closing Date) set forth on Schedule 9.01; provided that such Indebtedness is subordinated to the Obligations on terms satisfactory to the Agent;

 

(c) Indebtedness of an Obligor owing to another Obligor; provided that, in each case, such Indebtedness shall be subordinated to the Obligations pursuant to the Intercompany Subordination Agreement;

 

(d) Guaranties by an Obligor of the Indebtedness of another Obligor to the extent such Indebtedness is otherwise permitted hereunder; provided that any subrogation claims of any such guarantying Obligor shall be subordinated to the Obligations pursuant to the Intercompany Subordination Agreement;

 

(e) ordinary course of business equipment financing and leasing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness shall not exceed $3,000,000 (or the Equivalent Amount in other currencies) at any time;

 

(f) Indebtedness under Hedging Agreements permitted by Section 9.05(e); provided that the aggregate notional amount for all such Hedging Agreements shall not exceed $1,500,000 (or the Equivalent Amount in other currencies);

 

(g) Indebtedness assumed pursuant to any Permitted Acquisition; provided that (i) the aggregate amount of Indebtedness permitted pursuant to this Section 9.01(g) shall not exceed $2,500,000 at any time outstanding and (ii) no such Indebtedness shall have been created or incurred in connection with, or in contemplation of, such Permitted Acquisition;

 

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(h) Indebtedness in respect of any agreement providing for treasury, depositary or cash management services, including in connection with any automated clearing house transfers of funds or any similar transfers, netting services, overdraft protections and other cash management and similar arrangements, in each case in the ordinary course of business;

  

(i) advances or deposits from customers or vendors received in the ordinary course of business;

 

(j) workers’ compensation claims, payment obligations in connection with health, disability or other types of social security benefits, unemployment or other insurance obligations and reclamation and statutory obligations, in each case incurred in the ordinary course of business;

 

(k) Indebtedness consisting of deferred obligations to pay insurance premiums solely in respect of insurance policies described in Section 8.05 insuring assets or businesses of an Obligor that are written or arranged in such Obligor’s ordinary course of business and which are payable within one (1) year;

 

(l) Indebtedness consisting of guarantees resulting from the endorsement of negotiable instruments for collection in the ordinary course of business;

 

(m) credit card Indebtedness in an outstanding principal amount not to exceed at any time $1,000,000 in the aggregate;

  

(n) Indebtedness under any letters of credit in an aggregate face amount not to exceed $500,000;

 

(o) Indebtedness incurred under performance, surety, bid, statutory and appeal bonds, completion guarantees and other similar obligations, in each case in the ordinary course of business not to exceed $500,000 in the aggregate at any time outstanding;

 

(p) (i) Indebtedness of the Borrower owing to RTW pursuant to the RTW Royalty Financing Agreement and, to the extent that the Additional RTW Royalty Financing Agreement has been executed by RTW and [Allurion] pursuant to the terms of the Side Letter, the Additional RTW Royalty Financing Agreement in an aggregate principal amount not to exceed the amount permitted under the Intercreditor Agreement, and (ii) any Indebtedness that refinances Indebtedness referred to in subclause (i) to the extent such refinancing is permitted in accordance with the Intercreditor Agreement;

 

(q) Permitted Refinancings of Indebtedness permitted pursuant to this Section 9.01 (other than Sections 9.1(h), (i), (j) and (p);

  

(r) to the extent constituting Indebtedness, customary transfer pricing and cost- sharing arrangements (i.e., “cost-plus” arrangements) among the Borrower and its Subsidiaries that are in the ordinary course of business; and

 

(s) other unsecured Indebtedness not otherwise permitted hereunder not to exceed $2,000,000 in the aggregate at any time outstanding.

 

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9.02 Liens. The Obligors shall not, and shall not permit any of their Subsidiaries to, create, incur, assume or permit to exist any Lien on any property now owned by it or such Subsidiary, except for the following:

 

(a) Liens securing the Obligations;

 

(b) any Lien on any property or asset of any Obligor or any of its Subsidiaries existing on the Closing Date and set forth on Schedule 7.13; provided that (i) no such Lien shall extend to any other property or asset of any Obligor or any of its Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(c) Liens securing Indebtedness permitted under Section 9.01(e) (including any Permitted Refinancings thereof); provided that such Liens are restricted solely to the collateral permitted to be secured pursuant to Section 9.01(e);

 

(d) Liens imposed by any applicable Law arising in the ordinary course of business, including (but not limited to) carriers’, warehousemen’s, lessor’s and mechanics’ liens and other similar Liens arising in the ordinary course of business and which (x) do not in the aggregate materially detract from the value of the property subject thereto or materially impair the use thereof in the operations of the business of any Obligor or any of its Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject to such Liens and for which adequate reserves have been made if required in accordance with GAAP;

 

(e) pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other similar social security legislation;

 

(f) Liens securing Taxes, assessments and other governmental charges, the payment of which is not yet due or is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserve or other appropriate provisions, if any, as shall be required GAAP shall have been made;

 

(g) servitudes, easements, rights of way, restrictions and other similar encumbrances on real property imposed by any applicable Law and Liens consisting of zoning or building restrictions, easements, licenses, restrictions on the use of property or minor imperfections in title thereto which, in the aggregate, are not material, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of any of the Obligors or any of their Subsidiaries;

 

(h) with respect to any real property, (i) such defects or encroachments as might be revealed by an up-to-date survey of such real property; (ii) the reservations, limitations, provisos and conditions expressed in the original grant, deed or patent of such property by the original owner of such real property pursuant to applicable Law; (iii) rights of expropriation, access or user or any similar right conferred or reserved by or in any applicable Law, which, in the aggregate for clauses (i), (ii) and (iii) above, are not material, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of any of the Obligors or their Subsidiaries; and (iv) leases or subleases in the ordinary course of business;

 

(i) Liens securing Indebtedness permitted under Section 9.01(g); provided that (i) such Lien is not created in contemplation of or in connection with such Permitted Acquisition, (ii) such Lien shall not apply to any other property or assets of any Obligor or any of its Subsidiaries other than the property or assets being acquired pursuant to such Permitted Acquisition, and (iii) such Lien shall secure only those obligations that it secured immediately prior to the consummation of such Permitted Acquisition and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

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(j) bankers’ liens, rights of setoff and similar Liens incurred on deposits made in the ordinary course of business;

 

(k) (i) licenses permitted pursuant to Section 9.18 and (ii) any ordinary course interest or title of a licensor, sublicensor, collaborator, lessor or sublessor with respect to any assets under any inbound license, collaboration agreement or lease agreement permitted pursuant to Section 9.18;

 

(l) cash collateral accounts serving as collateral in connection with Indebtedness permitted pursuant to Section 9.01(n) in an amount up to 105% of such Indebtedness;

 

(m) Liens securing judgments for the payment of money not constituting an Event of Default under Section 11.01(i);

 

(n) Liens solely on any cash earnest money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement in connection with a Permitted Acquisition;

 

(o) Liens in favor of customs and revenue authorities arising as a matter of Law which secure payment of customs duties in connection with the importations of goods in the ordinary course of business;

 

(p) purported Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases for personal property entered into in the ordinary course of business;

 

(q) Liens securing Indebtedness permitted by Section 9.01(p) so long as such Liens are subject to the Intercreditor Agreement;

 

(r) pledges or deposits made in the ordinary course of business in connection with obligations in respect of (i) surety or appeal bonds, bid or performance bonds, or other obligations of a like nature to the extent permitted pursuant to Section 9.01(o) and (ii) leases in the ordinary course of business; and

 

(s) Liens consisting of Permitted Licenses.

 

Any term or provision of this Agreement to the contrary notwithstanding no Lien otherwise permitted under any of the foregoing clauses (b) through (s) (other than pursuant to clause (m) above and other non-consensual Permitted Liens) shall apply to any Material Intellectual Property or any Equity Interests of any Person that owns Material Intellectual Property.

 

9.03 Fundamental Changes, Acquisitions, Etc. The Obligors shall not, and shall not permit any of their Subsidiaries to, (i) enter into any transaction of merger, amalgamation or consolidation (other than in connection with the De-SPAC Transaction), (ii) liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), (iii) sell or issue any Disqualified Equity Interests or (iv) other than Permitted Acquisitions, make any Acquisition or otherwise acquire any business or all or substantially all the property from, or Equity Interests of, or be a party to any Acquisition of, any Person, except for the following (in each case so long as no Event of Default has occurred and is continuing and no Event of Default could reasonably be expected to result therefrom):

 

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(a) the merger, amalgamation or consolidation of any Subsidiary with or into any other Obligor (other than any Subsidiary that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a)); provided that Parent and the Borrower shall not merge, amalgamate or consolidate with or into one another, and with respect to any other such transaction involving Parent or the Borrower, Parent or the Borrower, as applicable must be the surviving or successor entity of such transaction and with respect to any transaction involving any other Obligor and a Subsidiary that is not an Obligor, the Obligor must be the surviving or successor entity of such transaction

 

(b) the sale, lease, transfer or other disposition by any Subsidiary (other than the Borrower) of any or all of its property (upon voluntary liquidation or otherwise) to any Obligor (other any Subsidiary that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a));

 

(c) the sale, transfer or other disposition of the Equity Interests of any Subsidiary (other than the Borrower) to any Obligor (other than any Person that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a));

 

(d) transactions permitted by Section 9.05;

 

(e) the creation of any Subsidiary in compliance with Section 8.12; and

 

(f) the sale, lease, transfer or other disposition by any Subsidiary that is not an Obligor of any or all of its property (upon voluntary liquidation or otherwise) to an Obligor.

 

9.04 Lines of Business. The Obligors shall not, and shall not permit any of their Subsidiaries to, engage in any business other than the business engaged in on the Closing Date by such Persons or a similar, corollary, ancillary, incidental, complementary or related line of business, or a reasonable extension, development or expansion thereof.

 

9.05 Investments. The Obligors shall not, and shall not permit any of their Subsidiaries to, make, directly or indirectly, or permit to remain outstanding any Investments except for the following:

 

(a) Investments outstanding on the Closing Date and identified on Schedule 9.05 and any modification, replacement, renewal or extension thereof to the extent not involving new or additional Investments or otherwise increasing the amount thereof;

 

(b) operating Deposit Accounts, Securities Accounts or Commodity Accounts with banks or financial institutions that are Controlled Accounts or Excluded Accounts;

 

(c) extensions of credit in the nature of accounts receivable or notes receivable arising from the sales of goods or services in the ordinary course of business and prepaid royalties in the ordinary course of business;

 

(d) Permitted Cash Equivalent Investments in Controlled Accounts;

 

(e) Hedging Agreements entered into in any Obligor’s or any of its Subsidiaries’ ordinary course of business for the purpose of hedging currency risks or interest rate risks (but not for speculative purposes); provided that the aggregate notional amount for all such Hedging Agreements shall not exceed $1,500,000 (or the Equivalent Amount in other currencies);

 

(f) Investments consisting of security deposits with utilities and landlords to secure office space and other like Persons made in the ordinary course of business;

 

(g) employee loans, travel advances and guarantees in accordance with Parent’s usual and customary practices with respect thereto (if permitted by applicable Law) which in the aggregate shall not exceed $1,000,000 outstanding at any time (or the Equivalent Amount in other currencies);

 

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(h) Investments received in connection with any Insolvency Proceedings in respect of any customers, suppliers or clients and in settlement of delinquent obligations of, and other disputes with, customers, suppliers or clients;

 

(i) Investments in the form of Indebtedness owing by an Obligor or any of its Subsidiaries to another Obligor to the extent such Indebtedness is permitted pursuant to Section 9.01 (including any Permitted Refinancings thereof);

 

(j) Permitted Acquisitions;

 

(k) (i) loans to employees, officers or directors relating to the purchase of equity securities of Parent or its Subsidiaries pursuant to employee stock purchase plans or agreements approved by Parent’s Board and (ii) non-cash loans to employees, officers or directors relating to the exercise of options to purchase equity securities of Parent or its Subsidiaries which, in each case, in the aggregate of (i) and (ii) together shall not exceed $100,000 outstanding at any time;

 

(l) Investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any Subsidiary, in each case, so long as (i) such Person becomes a Subsidiary pursuant to a Permitted Acquisition or such consolidation or merger, as the case may be, is permitted pursuant hereto, (ii) such Person becomes a Subsidiary Guarantor pursuant to Section 8.12 and (iii) such Investments were not made in contemplation of such Person becoming a Subsidiary or of such merger;

 

(m) Investments consisting of payments of the cost of the formation of and maintenance of Subsidiaries so long as such Subsidiaries comply with Section 8.12 and the aggregate amount of such Investments at any time outstanding does not exceed $200,000;

 

(n) advances in respect of customary transfer pricing and cost-sharing arrangements (i.e., “cost-plus” arrangements) among the Parent and its Subsidiaries that are in the ordinary course of business;

 

(o) non-cash Investments in joint ventures or strategic alliances in the ordinary course of the Borrower’s business consisting of the licensing of technology, the development of technology or the providing of technical support; provided that the aggregate amount of Investments permitted under this Section 9.05(o) shall not exceed $1,500,000 at any time outstanding;

 

(p) cash Investments in small partner companies in connection with product development projects and investments in joint ventures and other strategic alliances; provided that the aggregate amount of Investments permitted under this Section 9.05(p) shall not exceed $250,000 at any time outstanding; and

 

(q) so long as no Event of Default has occurred and is continuing or could reasonably be expected to result therefrom, Investments not otherwise permitted hereunder in an aggregate amount not to exceed $500,000 at any time outstanding.

 

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9.06 Restricted Payments. The Obligors shall not, and shall not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment except for the following:

 

(a) non-cash dividends with respect to Parent’s Equity Interests payable solely in shares of its Qualified Equity Interests so long as no Event of Default has occurred and is continuing or could reasonably be expected to occur or result therefrom;

 

(b) dividends paid by any Subsidiary of any Obligor to any Obligor and any Person that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a));

 

(c) upon the death, incapacity or termination of any present or former officer or employee that is a holder of Qualified Equity Interests of Parent or the exercise of a right of first refusal or similar right in respect of any such holder, Parent may repurchase such Qualified Equity Interests of such holder or such holder’s family, trusts, estates and heirs pursuant to stock repurchase agreements in an amount not to exceed $100,000 per fiscal year so long as no Event of Default has occurred and is continuing or could reasonably be expected to occur or result therefrom;

 

(d) the payment by any Obligor or any of its Subsidiaries of cash in lieu of the issuance of fractional shares made to redeem, purchase, repurchase, or retire the obligations under any warrants issued by it in accordance with the terms thereof;

 

(e) the repurchase or other acquisition of Qualified Equity Interests of Parent deemed to occur (i) upon the exercise of stock options, warrants, restricted stock units or other rights to purchase Qualified Equity Interests of Parent if such Equity Interests represent a portion of the exercise price thereof or conversion price thereof and (ii) in connection with any tax withholding required upon the grant of or any exercise or vesting of any Qualified Equity Interests of Parent (or options in respect thereof);

 

(f) cash in lieu of the issuance of fractional shares not to exceed $25,000 per fiscal year;

 

(g) Parent may honor any non-cash (or, in the case of fractional shares, cash) conversion or exercise requests in respect of any convertible securities, options, or warrants of Parent into Qualified Equity Interests of Parent pursuant to the terms of such convertible securities, options or warrants or otherwise in exchange therefor;

 

(h) The payment by any Obligor of any or its Subsidiaries of Permitted Tax Distributions; and

 

(i) Restricted Payments not otherwise permitted hereunder in an aggregate amount not to exceed $500,000 since the Closing Date so long as no Event of Default has occurred and is continuing or could reasonably be expected to occur or result therefrom.

 

9.07 Payments of Indebtedness. The Obligors shall not, and shall not permit any of their Subsidiaries to, make any payments (whether voluntary or mandatory, a prepayment or repayment, repurchase or redemption) in respect of any Indebtedness (including under the RTW Royalty Financing Agreement) other than, subject to the terms of any applicable subordination, intercreditor, or similar agreement in favor of (or entered into for the benefit of) the Agent or the Lenders (including the Intercreditor Agreement), (i) payments in respect of the Obligations, (ii) other required or scheduled payments (including, without limitation, associated fees and costs) of such Indebtedness to the extent payment is permitted pursuant to the terms of the applicable subordination or similar agreement, (iii) any “Permitted RIFA Payments” (as defined in the Intercreditor Agreement) and (iv) payments of Indebtedness permitted under Section 9.01(e).

 

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9.08 Change in Fiscal Year. The Obligors shall not, and shall not permit any of their Subsidiaries to, change the last day of their fiscal year from that in effect on the Closing Date, except to change the fiscal year of a Subsidiary acquired in connection with an Acquisition to conform its fiscal year to that of the Obligors or as otherwise required by Law.

 

9.09 Sales of Assets, Etc.. The Obligors shall not, and shall not permit any of their Subsidiaries to sell, lease, transfer, or otherwise dispose of any of their assets or properties (including accounts receivable, Intellectual Property or Equity Interests of Subsidiaries), grant or enter into any outbound license (or equivalent) of Intellectual Property, forgive, release or compromise any amount owed to any Obligor or any such Subsidiary, or irretrievably abandon or dispose of any Patents, in each case, in one transaction or series of transactions (any thereof, an “Asset Sale”), except for the following (provided that, in the case of any Asset Sale of the type described in clauses (c) or (i) below, the Obligors shall not, and shall not permit any of their Subsidiaries to, allow any such Asset Sale to occur if any Event of Default has occurred and is continuing or could reasonably be expected to occur as a result of such Asset Sale):

 

(a) sales of inventory in the ordinary course of its business on ordinary business terms;

 

(b) the forgiveness, release or compromise of any amount owed to an Obligor or any of its Subsidiaries in the ordinary course of business;

 

(c) transfers of assets or properties (other than any Intellectual Property) by any by any Obligor or any of its Subsidiaries to another Obligor (other than any Person that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a));

 

(d) dispositions of any asset or property (including leasehold interests, but other than any Material Intellectual Property) that is obsolete or worn out or no longer used or useful in the business of the Parent and its Subsidiaries; provided that no disposition of Intellectual Property that does not constitute Material Intellectual Property shall be permitted under this Section 9.09(d) unless the applicable Obligor or Subsidiary has first offered the Agent a right of first negotiation for the right to purchase or license such Intellectual Property;

 

(e) as expressly permitted under Sections 9.03 or 9.05;

 

(f) the use of cash and Permitted Cash Equivalent Investments in the ordinary course of business or in connection with other business activities not prohibited or otherwise restricted hereby or by any other Loan Document;

 

(g) dispositions consisting of the sale, transfer, assignment or other disposition of unpaid and overdue accounts receivable in connection with the collection, compromise or settlement thereof;

 

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(h) dispositions of any asset or property (other than Intellectual Property) to the extent that such asset or property is exchanged for credit against the purchase price of similar replacement property;

 

(i) any license of Intellectual Property to the extent permitted by Section 9.18;

 

(j) any Casualty Event that would constitute an Asset Sale;

 

(k) the sale of Qualified Equity Interests of Parent (to the extent not resulting in a Change of Control or other Event of Default);

 

(l) the lapse or abandonment of any registrations or applications for registration of any Intellectual Property (other than Material Intellectual Property) no longer used or useful in the conduct in the business of the Parent or its Subsidiaries to the extent no longer economically desirable in the conduct of their business (in the reasonable, good faith judgment of the Obligors); provided that no such lapse or abandonment of Intellectual Property that does not constitute Material Intellectual Property shall be permitted under this Section 9.09(l) unless the applicable Obligor or Subsidiary has first offered the Agent a right of first negotiation for the right to purchase or license such Intellectual Property;

 

(m) customary transfer pricing and cost-sharing arrangements (i.e., “cost-plus” arrangements) among the Parent and its Subsidiaries that are in the ordinary course of business; and

 

(n) other Asset Sales (other than any abandonment or disposal of Patents) not otherwise permitted hereunder not to exceed $500,000 in the aggregate.

 

9.10 Transactions with Affiliates. The Obligors shall not, and shall not permit any of their Subsidiaries to, sell, lease, license or otherwise transfer any assets to, or purchase, lease, license or otherwise acquire any assets from, or otherwise engage in any other transactions with, any of its Affiliates, except:

 

(a) transactions between or among Obligors and their Subsidiaries (other than any Subsidiary that is required to become a Subsidiary Guarantor but has not yet done so within the time periods set forth in Section 8.12(a));

 

(b) customary compensation and indemnification of, and other employment arrangements with, directors, officers and employees of Parent or any of its Subsidiaries in the ordinary course of business; and

 

(c) any other transaction of any Obligor or any of its Subsidiaries that is (i) on fair and reasonable terms that are no less favorable (including with respect to the amount of cash or other consideration receivable or payable in connection therewith ) to such Obligor or such Subsidiary, as applicable, than it could obtain in an arm’s-length transaction with a Person that is not an Affiliate of such Obligor or such Subsidiary, and (ii) of the kind which would be entered into by a prudent Person in the position of such Obligor or such Subsidiary, as applicable, with another Person that is not an Affiliate of such Obligor or such Subsidiary, as applicable.

 

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9.11 Restrictive Agreements. The Obligors shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any Restrictive Agreement other than (i) restrictions and conditions imposed by applicable Laws or by the Loan Documents and (ii) Restrictive Agreements listed on Schedule 7.15.4

 

9.12 Modifications and Terminations of Material Agreements and Organic Documents. The Obligors shall not, and shall not permit any of their Subsidiaries to:

 

(a) waive, amend, modify, terminate, replace or otherwise modify any term or provision of any Organic Document in any manner adverse to the interests of the Agent or to the Lenders in their capacities as such;

 

(b) (x) take or omit to take any action that results in the termination of, or permits any other Person to terminate, any Material Agreement or Material Intellectual Property, or (y) waive, amend, terminate, replace or otherwise modify any term or provision of any Material Agreement in any manner materially adverse to the interests of the Secured Parties in their capacities as such (provided that, for the avoidance of doubt, any such actions with respect to the RTW Royalty Financing Agreement or, once entered into, the Additional RTW Royalty Financing Agreement shall be governed by clause (c) below and not this clause (b)); or

 

(c) waive, amend, modify, terminate, replace or otherwise modify any term or provision of the RTW Royalty Financing Agreement or, to the extent that the Additional RTW Royalty Financing Agreement has been executed by RTW and [Allurion] pursuant to the terms of the Side Letter, the Additional RTW Royalty Financing Agreement except as permitted pursuant to the Intercreditor Agreement.

 

9.13 Sales and Leasebacks. Except as disclosed on Schedule 9.13, the Obligors shall not, and shall not permit any of their Subsidiaries to, become liable, directly or indirectly, with respect to any lease, whether an operating lease or a Capital Lease Obligation, of any asset or property (whether real, personal, or mixed), whether now owned or hereafter acquired, (i) which such Person has sold or transferred or is to sell or transfer to any other Person and (ii) which such Person intends to use for substantially the same purposes as property which has been or is to be sold or transferred.

 

9.14 Hazardous Material. The Obligors shall not, and shall not permit any of their Subsidiaries to, use, generate, manufacture, install, treat, release, store or dispose of any Hazardous Material, except in compliance with all applicable Environmental Laws or where the failure to comply could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

 

 

4MoFo/Goodwin to confirm that the Intercreditor Agreement will be listed in this Schedule.

 

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9.15 Accounting Changes. The Obligors shall not, and shall not permit any of their Subsidiaries to, make any significant change in accounting treatment or reporting practices, except as required or permitted by GAAP.

 

9.16 [Reserved].

 

9.17 Sanctions; Anti-Corruption Use of Proceeds. The Borrower shall not, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any applicable anti-corruption Law, or (ii) (A) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (B) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans, whether as Agent, Lender, underwriter, advisor, investor, or otherwise).

 

9.18 Inbound and Outbound Licenses.

 

(a) Inbound Licenses. The Obligors shall not, and shall not permit any of their Subsidiaries to, enter into or become or remain bound by any inbound license agreement requiring any Obligor or any of its Subsidiaries, as the case may be, during any twelve (12) month period during the term of such license agreement, to make aggregate payments in excess of $500,000 in respect of such inbound license unless the Borrower has (i) provided prior written notice to the Agent of the material terms of such license or agreement with a description of its anticipated and projected impact on the Borrower’s or such Subsidiary’s, as applicable, business or financial condition and (ii) taken such commercially reasonable actions as the Agent may reasonably request to obtain the consent of, or waiver by, any Person whose consent or waiver is necessary for the Agent and the Lenders to be granted a valid and perfected Lien on such license agreement and the right to fully exercise its rights under any of the Loan Documents in the event of a disposition or liquidation (including in connection with a foreclosure) of the rights, assets or properties that are the subject of such license agreement; provided that inbound license agreements in the nature of over the counter or “shrink wrap” software that are commercially available to the public shall not be prohibited by this clause (a).

 

(b) Outbound Licenses. The Obligors shall not, and shall not permit any of their Subsidiaries to, enter into or become or remain bound by any outbound license, including any collaboration or development agreement, of Intellectual Property of any Obligor or any of its Subsidiaries other than Permitted Licenses.

 

9.19 Take-Or-Pay Agreements. The Obligors shall not, and shall not permit any of their Subsidiaries to, enter into any agreements to make take-or-pay or similar payments if required regardless of nonperformance by any other party or parties to an agreement, other than operating leases entered into in the ordinary course of business and any such license or other agreement for the purchase of goods, software and other intangibles, services or supplies in the ordinary course of business.

 

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9.20 Passive Holding Company. Parent shall not conduct, transact or otherwise engage in any active trade, business or operations or incur any Indebtedness or other liability or obligation, nor shall Parent acquire or own any assets or properties other than Qualified Equity Interests of the Borrower; provided that the foregoing will not prohibit Parent from the following: (i) the maintenance of its legal existence (including the ability to incur reasonable fees, costs, expenses and other liabilities to the extent related to such maintenance), (ii) the performance of its Obligations arising pursuant to the Loan Documents to which it is a party, (iii) the making of Investments in the ordinary course of business in the Parent and any of its wholly-owned direct or indirect Subsidiaries; provided that such Investments shall only be in the form of Qualified Equity Interests, (iv) participating in tax, accounting and other administrative and fiduciary matters as a direct owner of the Borrower, in each case, in accordance with the terms of the Loan Documents to which it is a party, (v) holding any cash or Permitted Cash Equivalent Investments on a temporary basis (and in no event longer than ten (10) Business Days) that is in the process of being transferred by Parent to the Borrower as a permitted Investment pursuant to clause (iii) above, (vi) taking such actions as may be necessary or required in order to comply with the rules and regulations of the Exchange Act, the Securities Act, and (vii) providing customary compensation, indemnification and insurance coverage to the officers and directors of Parent and its Subsidiaries, if any.

 

SECTION 10

FINANCIAL COVENANTS

 

10.01 Minimum Liquidity. The Borrower shall at all times maintain a minimum aggregate balance of twelve million and five hundred thousand dollars ($12,500,000) in cash in one or more Controlled Accounts maintained with one or more commercial banks or similar deposit- taking institutions in the U.S. that are free and clear of all Liens, other than Liens granted under the Loan Documents in favor of the Secured Parties.

 

10.02 Minimum Revenue. As of the last day of each fiscal quarter set forth below, the Parent and its Subsidiaries shall have received consolidated Revenue for the period of twelve (12) consecutive months ending on the last day of such fiscal quarter, determined on the basis of the financial statements most recently delivered pursuant to Sections 8.01(b) or 8.01(c), as applicable, in an aggregate amount not less than the corresponding amount set forth opposite such fiscal quarter5:

 

Fiscal Quarter Ending   TTM Revenue
September 30, 2023   $63.6 million
December 31, 2023   $80.5 million
March 31, 2024   $92.0 million
June 30, 2024   $105.5 million
September 30, 2024   $98.3 million

 

Fiscal Quarter Ending   TTM Revenue
December 31, 2024   $108.0 million
March 31, 2025   $119.6 million
June 30, 2025   $125.8 million
September 30, 2025 and Thereafter   $107.3 million

 

 

5In the event the Closing Date occurs on or before June 30, 2023 this table will be adjusted so as to commence with the fiscal quarter ended 6/30/2023.

 

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SECTION 11

EVENTS OF DEFAULT

 

11.01 Events of Default. Each of the following events shall constitute an “Event of Default”:

 

(a) Principal or Interest Payment Default. The Borrower shall fail to pay any principal of or interest on the Loans, when and as the same shall become due and payable, whether at the due date thereof, at a date fixed for prepayment thereof or otherwise.

 

(b) Other Payment Defaults. Any Obligor shall fail to pay any Obligation (other than an amount referred to in Section 11.01(a)) when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days.

 

(c) Representations and Warranties. Any representation or warranty made or deemed made by or on behalf of any Obligor or any of its Subsidiaries in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, shall: (i) prove to have been incorrect when made or deemed made to the extent that such representation or warranty contains any materiality or Material Adverse Effect qualifier; or (ii) prove to have been incorrect in any material respect when made or deemed made to the extent that such representation or warranty does not otherwise contain any materiality or Material Adverse Effect qualifier.

 

(d) Certain Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in Sections 8.01, 8.02, 8.03 (with respect to the Borrower’s existence), 8.11, 8.12, 8.13, 8.15, 8.17, 8.19, 8.20, 8.21, Section 9 or Section 10.

 

(e) Other Covenants. Any Obligor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in Section 11.01(a), 11.01(b) or 11.01(d)) or any other Loan Document, and, in the case of any failure that is capable of cure, such failure shall continue unremedied for a period of thirty (30) or more days.

 

(f) Payment Default on Other Indebtedness. Any Obligor or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness or other Indebtedness in an aggregate principal amount in excess of $1,000,000, when and as the same shall become due and payable after giving effect to any applicable grace or cure period as originally provided by the terms of such Indebtedness.

 

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(g) Other Defaults on Other Indebtedness. (i) Any breach of, “default” or “event of default”, or similar event shall occur under, pursuant to or in connection with Material Indebtedness, or any other event or condition shall occur, that, in either case, shall (x) result in any Material Indebtedness becoming due prior to its scheduled maturity or (y) enable or permit (with or without the giving of notice, the lapse of time or both) the holder or holders or beneficiaries of any Material Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity (which shall include in any event the obligation to make any Change of Control Payment under and as defined in the RTW Royalty Financing Agreement or any similar obligation under, pursuant to or in connection with any other Material Indebtedness), or (ii) there occurs under any Hedging Agreement an early termination date (as defined in such Hedging Agreement) resulting from (x) any event of default under such Hedging Agreement as to which Parent or any of its Subsidiaries is the defaulting party (as defined in such Hedging Agreement) and such event of default shall continue unremedied, uncured or unwaived after the expiration of any cure period thereunder or (y) any termination event (as defined in such Hedging Agreement) under such Hedging Agreement as to which Parent or any Subsidiary is an affected party (as defined in such Hedging Agreement) and, in either event, the termination value (if determined in accordance with the Hedging Agreement) or the amount determined as the mark-to-market value (if the termination value has not been so determined) for such affected Hedging Agreement that is owed by Parent or such Subsidiary as a result thereof is greater than $1,000,000; provided that this clauses (i) and (ii) of this Section 11.01(g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Material Indebtedness so long as such Material Indebtedness is repaid in full substantially contemporaneously with such sale or transfer.

 

(h) Insolvency, Bankruptcy, Etc.

 

(i) An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (x) liquidation, reorganization or other relief in respect of Parent or any of its Subsidiaries or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (y) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Parent or any of its Subsidiaries or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;

 

(ii) Parent or any of its Subsidiaries shall (w) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (x) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) above, (y) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Parent or any of its Subsidiaries or for a substantial part of its assets, (z) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (aa) make a general assignment for the benefit of creditors or (bb) take any action for the purpose of effecting any of the foregoing; or

 

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(iii) Parent or any of its Subsidiaries shall become unable, admit in writing its inability or fail generally to pay its debts as they become due.

 

(i) Judgments. One or more final judgments for the payment of money in an aggregate amount in excess of $1,000,000 (or the Equivalent Amount in other currencies) (in each case excluding any amounts covered by insurance as to which the applicable carrier has not denied coverage) shall be rendered against Parent or any of its Subsidiaries or any combination thereof and the same shall remain undismissed, unsatisfied or undischarged for a period of forty- five (45) calendar days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Obligor to enforce any such judgment.

 

(j) ERISA and Pension Plans. An ERISA Event shall have occurred that, in the opinion of the Agent, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Change.

 

(k) Material Adverse Change, Etc. A Material Adverse Change, Material Adverse Effect or Material Regulatory Event shall have occurred.

 

(l) Change of Control. A Change of Control shall have occurred.

 

(m) Impairment of Security, Etc. If any of the following events occurs, and with respect to the following clause (i), other than as a result of the acts or omissions of the Agent or any Lender: (i) the Liens created by any of the Security Documents shall at any time not constitute a valid and perfected Lien on a material portion of the applicable Collateral in favor of the Secured Parties, free and clear of all other Liens (other than Permitted Liens), (ii) except for expiration in accordance with its terms or as a result of payment in full, any material portion of the Security Documents, taken as a whole, or of any material Guaranty of any of the Obligations (including that contained in Section 13) shall for whatever reason cease to be in full force and effect, or (iii) other than by reason of payment in full or permitted release in accordance with the terms of the Loan Documents, any Obligor shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any such Lien or any Loan Document, in each case subject to any limitations following from (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

11.02 Remedies. Upon the occurrence and during the continuance of any Event of Default, then, and in every such event (other than an Event of Default described in Section 11.01(h)), and at any time thereafter during the continuance of such event, the Agent may, by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations, shall become due and payable immediately (in the case of the Loans, at the Prepayment Price therefor), without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Obligor; and upon the occurrence of an Event of Default described in Section 11.01(h), the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations, shall automatically become due and payable immediately (in the case of the Loans, at the Prepayment Price therefor), without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Obligor.

 

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11.03 Additional Remedies. Upon the occurrence and during the continuance of any Event of Default, if Parent or any of its Subsidiaries shall be in uncured default under a Material Agreement, the Agent or the Lenders shall have the right (but not the obligation) to cause the default or defaults under such Material Agreement to be remedied (including without limitation by paying any unpaid amount thereunder) and otherwise exercise any and all rights of Parent or such Subsidiary, as the case may be, thereunder, as may be necessary to prevent or cure any default. Without limiting the foregoing, upon any such default, Parent and each of its Subsidiaries shall promptly execute, acknowledge and deliver to the Agent such instruments as may reasonably be required of Parent or such Subsidiary to permit the Agent and the Lenders to cure any default under the applicable Material Agreement or permit the Agent and the Lenders to take such other action required to enable the Agent and the Lenders to cure or remedy the matter in default and preserve the interests of the Agent or Lenders. Any amounts paid by the Agent or Lenders pursuant to this Section 11.03 shall be payable on demand by Obligors, shall accrue interest at the Default Rate if not paid on demand, and shall constitute “Obligations.”

 

SECTION 12

THE AGENT

 

12.01 Appointment and Duties. Subject in all cases to clause (c) below:

 

(a) Appointment of the Agent. Each of the Lenders hereby irrevocably appoints Fortress Credit Corp. (together with any successor the Agent pursuant to Section 12.09) as the administrative agent hereunder and authorizes the Agent to (i) execute and deliver the Loan Documents and accept delivery thereof on its behalf from Parent or any of its Subsidiaries, (ii) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to the Agent under such Loan Documents and (iii) exercise such powers as are reasonably incidental thereto.

 

(b) Duties as Collateral and Disbursing Agent. Without limiting the generality of Section 12.01(a), the Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with the Loan Documents (including in any proceeding described in Section 11.01(h) or any other bankruptcy, insolvency or similar proceeding); provided that (i) the Agent shall only be required to act in such agency capacity if it has notified the Borrower and the Lenders in writing that it has elected to do so, and (ii) so long as the Agent has not delivered any such election notice it shall not be deemed to be acting as a disbursing and collecting agent for any other Lender or Secured Party and no Person (including any Withholding Agent) shall be authorized to make any payment to the Agent for such purpose, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 11.01(h), and each Person making any payment in connection with any Loan Document to any Secured Party is hereby authorized to make such payment to the Agent, (ii) file and prove claims and file other documents necessary or desirable to allow the claims of the Secured Parties with respect to any Obligation in any proceeding described in Section 11.01(h) or any other bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Secured Party), (iii) act as collateral agent for each Secured Party for purposes of the perfection of all Liens created by such agreements and all other purposes stated therein, (iv) manage, supervise and otherwise deal with the Collateral, (v) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by the Loan Documents, (vi) except as may be otherwise specified in any Loan Document, exercise all remedies given to the Agent and the other Secured Parties with respect to the Collateral, whether under the Loan Documents, applicable Laws or otherwise and (vii) execute any amendment, consent or waiver under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided that the Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the Agent and the Lenders for purposes of the perfection of all Liens with respect to the Collateral, including any deposit account maintained by any Obligor with, and cash and Permitted Cash Equivalent Investments held by, such Lender, and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to the Agent, and each Lender hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.

 

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(c) Limited Duties. The Lenders and the Obligors hereby each acknowledge and agree that the Agent (i) has undertaken its role hereunder purely as an accommodation to the parties hereto and the Transactions, (ii) is receiving no compensation for undertaking such role and (iii) subject only to the notice provisions set forth in Section 12.09, may resign from such role at any time for any reason or no reason whatsoever. Without limiting the foregoing, the parties hereto further acknowledge and agree that under the Loan Documents, the Agent (i) is acting solely on behalf of the Lenders (except to the limited extent provided in Section 12.11), with duties that are entirely administrative in nature and do not (and are not intended to) create any fiduciary obligations, notwithstanding the use of the defined term “the Agent”, the terms “agent”, “administrative agent” and “collateral agent” and similar terms in any Loan Document to refer to the Agent, which terms are used for title purposes only, (ii) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Secured Party and (iii) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document (fiduciary or otherwise), and each Lender hereby waives and agrees not to assert any claim against the Agent based on the roles, duties and legal relationships expressly disclaimed in this clause (c).

 

12.02 Binding Effect. Each Lender agrees that (i) any action taken by the Agent or the Majority Lenders (or, if expressly required hereby, a greater proportion of the Lenders) in accordance with the provisions of the Loan Documents, (ii) any action taken by the Agent in reliance upon the instructions of the Majority Lenders (or, where so required, such greater proportion) and (iii) the exercise by the Agent or the Majority Lenders (or, where so required, such greater proportion) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Secured Parties.

 

12.03 Use of Discretion.

 

(a) No Action without Instructions. The Agent shall not be required to exercise any discretion or take, or to omit to take, any action, including with respect to enforcement or collection, except (subject to clause (b) below) any action it is required to take or omit to take (i) under any Loan Document or (ii) pursuant to instructions from the Majority Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders).

 

(b) Right Not to Follow Certain Instructions. Notwithstanding Section 12.03(a) or any other term or provision of this Section 12, the Agent shall not be required to take, or to omit to take, any action (i) unless, upon demand, the Agent receives an indemnification satisfactory to it from the Lenders (or, to the extent applicable and acceptable to the Agent, any other Secured Party) against all liabilities that, by reason of such action or omission, may be imposed on, incurred by or asserted against the Agent or any Related Parties thereof or (ii) that is, in the opinion of the Agent, in its sole and absolute discretion, contrary to any Loan Document, applicable Law or the best interests of the Agent or any of its Affiliates or Related Parties.

 

12.04 Delegation of Rights and Duties. The Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Secured Party). Any such Person shall benefit from this Section 12 to the extent provided by the Agent.

 

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12.05 Reliance and Liability.

 

(a) The Agent may, without incurring any liability hereunder, (i) consult with any of its Related Parties and, whether or not selected by it, any other advisors, accountants and other experts (including advisors to, and accountants and experts engaged by, any Obligor) and (ii) rely and act upon any document and information and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties.

 

(b) Neither the Agent nor any of its Related Parties shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each Lender hereby waives and shall not assert any right, claim or cause of action based thereon, except to the extent of liabilities resulting primarily from the fraudulent conduct or behavior of the Agent or, as the case may be, such Related Party (each as determined in a final, non-appealable judgment or order by a court of competent jurisdiction) in connection with the duties expressly set forth herein. Without limiting the foregoing, the Agent:

 

(i) shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Majority Lenders or for the actions or omissions of any of their Related Parties selected with reasonable care (other than employees, officers and directors of the Agent, when acting on behalf of the Agent);

 

(ii) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document;

 

(iii) makes no warranty or representation, and shall not be responsible, to any Secured Party for any statement, document, information, representation or warranty made or furnished by or on behalf of any Related Party, in or in connection with any Loan Document or any transaction contemplated therein, whether or not transmitted by the Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by the Agent in connection with the Loan Documents; and

 

(iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Obligor or as to the existence or continuation or possible occurrence or continuation of any Default or Event of Default and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from Parent, any Lender describing such Default or Event of Default clearly labeled “notice of default” (in which case the Agent shall promptly give notice of such receipt to all Lenders);

 

and, for each of the items set forth in clauses (i) through (iv) above, each Lender hereby waives and agrees not to assert any right, claim or cause of action it might have against the Agent based thereon.

 

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12.06 Agent Individually. The Agent and its Affiliates may make loans and other extensions of credit to, acquire stock and stock equivalents of, engage in any kind of business with, any Obligor or Affiliate thereof as though it were not acting as the Agent and may receive separate fees and other payments therefor. To the extent the Agent or any of its Affiliates makes any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the terms “Lender”, “Majority Lender”, and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without limitation, the Agent or such Affiliate, as the case may be, in its individual capacity as Lender or as one of the Majority Lenders, respectively.

 

12.07 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Agent, any Lender or any of their Related Parties or upon any document solely or in part because such document was transmitted by the Agent or any of its Related Parties, conducted its own independent investigation of the financial condition and affairs of each Obligor and has made and continues to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate.

 

12.08 Expenses; Indemnities.

 

(a) Each Lender agrees to reimburse the Agent and each of its Related Parties (to the extent not reimbursed by any Obligor) promptly upon demand for such Lender’s Proportionate Share of any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and Other Taxes paid in the name of, or on behalf of, any Obligor) that may be incurred by the Agent or any of its Related Parties in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding or otherwise) of, or legal advice in respect of its rights or responsibilities under, any Loan Document.

 

(b) Each Lender further agrees to indemnify the Agent and each of its Related Parties (to the extent not reimbursed by any Obligor), from and against such Lender’s aggregate Proportionate Share of the liabilities (including taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to on or for the account of any Lender) that may be imposed on, incurred by or asserted against the Agent or any of its Related Parties in any matter relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to any such Loan Document, or, in each case, any action taken or omitted to be taken by the Agent or any of its Related Parties under or with respect to any of the foregoing; provided that no Lender shall be liable to the Agent or any of its Related Parties to the extent such liability has resulted primarily from the gross negligence or willful misconduct of the Agent or, as the case may be, such Related Party, as determined by a court of competent jurisdiction in a final non-appealable judgment or order.

 

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12.09 Resignation of the Agent.

 

(a) At any time upon not less than thirty (30) Business Days prior written notice, the Agent may resign as the “the Agent” hereunder, in whole or in part (in the sole and absolute discretion of the Agent), effective on the date set forth in such notice, which effective date shall not be less than thirty (30) (or more than sixty (60)) days following delivery of such notice. If the Agent delivers any such notice, the Majority Lenders shall have the right to appoint a successor to the Agent; provided that if a successor to the Agent has not been appointed on or before the effectiveness of the resignation of the resigning Agent, then the resigning Agent may, on behalf of the Lenders, appoint any Person reasonably chosen by it as the successor to the Agent.

 

(b) Effective immediately upon its resignation, (i) the resigning Agent shall be discharged from its duties and obligations under the Loan Documents to the extent set forth in the applicable resignation notice, (ii) the Lenders shall assume and perform all of the duties of the Agent until a successor the Agent shall have accepted a valid appointment hereunder, (iii) the resigning Agent and its Related Parties shall no longer have the benefit of any provision of any Loan Document other than with respect to (x) any actions taken or omitted to be taken while such resigning Agent was, or because the Agent had been, validly acting as the Agent under the Loan Documents or (y) any continuing duties such resigning Agent continues to perform, and (iv) subject to its rights under Section 12.04, the resigning Agent shall take such action as may be reasonably necessary to assign to the successor the Agent its rights as the Agent under the Loan Documents. Effective immediately upon its acceptance of a valid appointment as the Agent, a successor the Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the resigning Agent under the Loan Documents.

 

12.10 Release of Collateral or Guarantors. Each Lender hereby consents to the release and hereby directs the Agent to release the following:

 

(a) any Subsidiary of Parent from its guaranty of any Obligation of any Obligor if all of the Equity Interests in such Subsidiary owned by any Obligor or any of its Subsidiaries are disposed of in an Asset Sale permitted under the Loan Documents (including pursuant to a waiver or consent), to the extent that, after giving effect to such Asset Sale, such Subsidiary would not be required to guaranty any Obligations pursuant to Section 8.12(a); and

 

(b) any Lien held by the Agent for the benefit of the Secured Parties against (i) any Collateral that is disposed of by an Obligor in an Asset Sale permitted by the Loan Documents (including pursuant to a valid waiver or consent), and (ii) all of the Collateral and all Obligors, upon (w) termination of the Commitments, (x) payment and satisfaction in full of all Loans and all other Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made) that the Agent has been notified in writing are then due and payable, (y) deposit of cash collateral with respect to all contingent Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made), in amounts and on terms and conditions and with parties satisfactory to the Agent and each Indemnified Party that is owed such Obligations, and (z) to the extent requested by the Agent, receipt by the Secured Parties of liability releases from the Obligors, each in form and substance acceptable to the Agent.

 

Each Lender hereby directs the Agent, and the Agent hereby agrees, upon receipt of reasonable advance notice from Parent, to execute and deliver or file such documents and to perform other actions reasonably necessary to release the Guaranties and Liens when and as directed in this Section 12.10.

 

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12.11 Additional Secured Parties. The benefit of the provisions of the Loan Documents directly relating to the Collateral or any Lien granted thereunder shall extend to and be available to any Secured Party that is not a Lender so long as, by accepting such benefits, such Secured Party agrees, as among the Agent and all other Secured Parties, that such Secured Party is bound by (and, if requested by the Agent, shall confirm such agreement in a writing in form and substance acceptable to the Agent) this Section 12 and the decisions and actions of the Agent and the Majority Lenders (or, where expressly required by the terms of this Agreement, a greater proportion of the Lenders) to the same extent a Lender is bound; provided that, notwithstanding the foregoing, (i) such Secured Party shall be bound by Section 12.08 only to the extent of liabilities, costs and expenses with respect to or otherwise relating to the Collateral held for the benefit of such Secured Party, in which case the obligations of such Secured Party thereunder shall not be limited by any concept of Proportionate Share or similar concept, (ii) each of the Agent and each Lender shall be entitled to act at its sole discretion, without regard to the interest of such Secured Party, regardless of whether any Obligation to such Secured Party thereafter remains outstanding, is deprived of the benefit of the Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby, and without any duty or liability to such Secured Party or any such Obligation and (iii) such Secured Party shall not have any right to be notified of, consent to, direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under any Loan Document.

 

SECTION 13

GUARANTEE

 

13.01 The Guarantee. Parent and the Subsidiary Guarantors hereby jointly and severally guarantee to the Agent and the Lenders, and their successors and assigns, the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest on the Loans, all fees and other amounts and Obligations from time to time owing to the Agent and the Lenders by the Borrower and each other Obligor under this Agreement or under any other Loan Document, in each case strictly in accordance with the terms hereof and thereof (such obligations being herein collectively called the “Guaranteed Obligations”). Parent and the Subsidiary Guarantors hereby further jointly and severally agree that if the Borrower or any other Obligor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, Parent and the Subsidiary Guarantors shall promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same shall be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

 

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13.02 Obligations Unconditional. The obligations of Parent and the Subsidiary Guarantors under Section 13.01 are absolute and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of Parent, the Borrower or any other Subsidiary Guarantor under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by all applicable Laws, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 13.02 that the obligations of Parent and the Subsidiary Guarantors hereunder shall be absolute and unconditional, joint and several, under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of Parent and the Subsidiary Guarantors hereunder, which shall remain absolute and unconditional as described above:

 

(a) at any time or from time to time, without notice to Parent and the Subsidiary Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

(b) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein shall be done or omitted;

 

(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with; or

 

(d) any lien or security interest granted to, or in favor of, the Secured Parties as security for any of the Guaranteed Obligations shall fail to be perfected.

 

Parent and the Subsidiary Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Agent or any Lender exhaust any right, power or remedy or proceed against Parent, the Borrower or any other Subsidiary Guarantor under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.

 

13.03 Reinstatement. The obligations of Parent and the Subsidiary Guarantors under this Section 13 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

 

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13.04 Subrogation. Parent and the Subsidiary Guarantors hereby jointly and severally agree that, until the payment and satisfaction in full of all Guaranteed Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made) and the expiration and termination of the Commitments, but subject to the reinstatement provisions set forth in Section 13.03, they shall not exercise any right or remedy arising by reason of any performance by them of their guarantee in Section 13.01, whether by subrogation or otherwise, against the Borrower or any other guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.

 

13.05 Remedies. Parent and the Subsidiary Guarantors jointly and severally agree that, as between Parent and the Subsidiary Guarantors, on one hand, and the Agent and the Lenders, on the other hand, the obligations of the Borrower under this Agreement and under the other Loan Documents may be declared to be forthwith due and payable as provided in Section 11 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 11) for purposes of Section 13.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by Parent and the Subsidiary Guarantors for purposes of Section 13.01.

 

13.06 Instrument for the Payment of Money. Each Subsidiary Guarantor and Parent hereby acknowledges that the guarantee in this Section 13 constitutes an instrument for the payment of money, and consents and agrees that the Agent and the Lenders, at their sole option, in the event of a dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the right to proceed by motion for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.

 

13.07 Continuing Guarantee. The guarantee in this Section 13 is a continuing guarantee, and shall apply to all Guaranteed Obligations (other than inchoate indemnification and expense reimbursement obligations for which no Claim has been made) whenever arising.

 

13.08 General Limitation on Guarantee Obligations. In any action or proceeding involving any provincial, territorial or state corporate law, or any state or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Subsidiary Guarantor or Parent under Section 13.01 would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 13.01, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by such Subsidiary Guarantor, Parent, the Agent, any Lender or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

 

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SECTION 14

MISCELLANEOUS

 

14.01 No Waiver. No failure on the part of the Agent or the Lenders to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under any Loan Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

 

14.02 Notices. All notices, requests, instructions, directions and other communications provided for herein (including any modifications of, or waivers, requests or consents under, this Agreement) or in the other Loan Documents shall be given or made in writing (including by telecopy or email) delivered, if to Parent, the Borrower, another Obligor, the Agent or any Lender, to its address specified on the signature pages hereto or its Guaranty Assumption Agreement, as the case may be, or at such other address as shall be designated by such party in a written notice to the other parties. Except as otherwise provided in this Agreement or therein, all such communications shall be deemed to have been duly given upon receipt of a legible copy thereof, in each case given or addressed as aforesaid. All such communications provided for herein by telecopy shall be confirmed in writing promptly after the delivery of such communication (it being understood that non-receipt of written confirmation of such communication shall not invalidate such communication). Notwithstanding anything to the contrary in this Agreement or any other Loan Document, notices, documents, certificates and other deliverables to the Lenders by any Obligor may be made solely to the Agent and the Agent shall promptly deliver such notices, documents, certificates and other deliverables to the Lenders.

 

14.03 Expenses, Indemnification, Etc.

 

(a) Expenses. Each Obligor, jointly and severally, agrees to pay or reimburse (i) the Agent and the Lenders for all of their reasonable and documented (in reasonable detail) out-of- pocket costs and expenses limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of Morrison & Foerster LLP, lead counsel for the Agent and the Lenders, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Agent and the Lenders in connection with (x) the negotiation, preparation, execution and delivery of this Agreement and the other Loan Documents and the making of the Loans (exclusive of post-closing costs), and (y) any such costs or expenses incurred after the Closing Date, including any costs or expenses relating to the negotiation or preparation of any modification, supplement, forbearance, consent or waiver of any of the terms of this Agreement or any of the other Loan Documents (whether or not consummated); and (ii) the Agent and the Lenders for all of their reasonable and documented out-of-pocket costs and expenses (including the out-of-pocket fees and expenses of legal counsel, but limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of one lead counsel for the Agent and all Lenders, together, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Agent and all Lenders together and, in the case of actual conflict of interest, one additional such set of applicable counsel)) in connection with any enforcement or collection proceedings resulting from the occurrence of an Event of Default.

 

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(b) Exculpation, Indemnification, etc.

 

(i) In no event shall any party hereto, any successor, transferee or assignee of any party hereto, or any of their respective Affiliates, directors, officers, employees, attorneys, agents, advisors or controlling parties (each, an “Exculpated Party”) have any obligation or responsibility for (and the Obligors jointly and severally waive any claims they may have in respect of) any Loss, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to this Agreement or any of the other Loan Documents or any of the Transactions or the actual or proposed use of the proceeds of the Loans; provided that, nothing in this clause (i) shall relieve any Obligor of any obligation such Obligor may have to indemnify an Indemnified Person, as provided in clause (ii) below, against any special, indirect, consequential or punitive damages asserted against such Indemnified Person by a third party. Each party hereto agrees, to the fullest extent permitted by applicable Law, that it will not assert, directly or indirectly, any Claim against any Exculpated Party with respect to any of the foregoing.

 

(ii) Each Obligor, jointly and severally, hereby indemnifies the Agent, each Lender, each of their respective successors, transferees and assigns and each of their respective Affiliates, directors, officers, employees, attorneys, agents, advisors and controlling parties (each, an “Indemnified Party”) from and against, and agrees to hold them harmless against, any and all Claims and Losses of any kind (limited to, in the case of legal counsel, the reasonable and documented (in reasonable detail) charges and disbursements of one lead counsel for all Indemnified Parties, together, and one additional local outside counsel in each material jurisdiction or discipline in each case for the Indemnified Parties together and, in the case of actual conflict of interest, one additional such set of applicable counsel), joint or several, that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or relating to any investigation, litigation or proceeding (each, a “Proceeding”) or the preparation of any defense with respect thereto arising out of or in connection with or relating to this Agreement or any of the other Loan Documents or the Transactions or any use made or proposed to be made with the proceeds of the Loans, whether or not such Proceeding is brought by any Obligor, any of its Subsidiaries, any of its shareholders or creditors, an Indemnified Party or any other Person, or an Indemnified Party is otherwise a party thereto, and whether or not any of the conditions precedent set forth in Section 6 are satisfied or the other transactions contemplated by this Agreement are consummated, except to the extent such Claim or Loss is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. This Section 14.03(b) shall not apply with respect to Taxes other than any Taxes that represent Losses arising from any non-Tax Claim.

 

(c) No Obligor shall be liable for any settlement of any Proceeding if the amount of such settlement was effected without such Obligor’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with such Obligor’s written consent or if there is a final judgment for the plaintiff in any such Proceeding, each Obligor agrees to, jointly and severally, indemnify and hold harmless each Indemnified Person from and against any and all Loss and related expenses by reason of such settlement or judgment in accordance with the terms of clause (ii) above. No Obligor shall, without the prior written consent of the Agent (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by any Indemnified Person unless such settlement (x) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to the Agent from all liability on Claims that are the subject matter of such Proceedings and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person or any injunctive relief or other non-monetary remedy. Each Obligor acknowledges that any failure to comply with the obligations under the preceding sentence may cause irreparable harm to the Agent and the other Indemnified Persons.

 

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14.04 Amendments, Etc. Except as otherwise expressly provided in this Agreement, any provision of this Agreement and any other Loan Document may be modified or supplemented only by an instrument in writing signed by Parent, the Borrower, the Agent and the Majority Lenders; provided that:

 

(a) any such modification or supplement that is disproportionately adverse to any Lender as compared to other Lenders or subjects any Lender to any additional obligation shall not be effective without the consent of such affected Lender;

 

(b) the consent of all of the Lenders directly affected thereby shall be required to:

 

(i) amend, modify, discharge, terminate or waive any of the terms of this Agreement or any other Loan Document if such amendment, modification, discharge, termination or waiver would increase the amount of the Loans or any Commitment of any Lender, reduce the fees payable to any Lender hereunder, reduce interest rates or other amounts payable with respect to the Loans held by any Lender, extend any date fixed for payment of principal, interest or other amounts payable relating to the Loans held by any Lender or extend the repayment dates of the Loans held by any Lender;

 

(ii) amend, modify, discharge, terminate or waive any Security Document if the effect is to release a material part of the Collateral subject thereto other than pursuant to the terms hereof or thereof; or

 

(iii) amend this Section 14.04 or the definition of “Majority Lenders”; and

 

(c) if the Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Agent and the Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Majority Lenders to the Agent within ten (10) Business Days following receipt of notice thereof.

 

14.05 Successors and Assigns.

 

(a) General. The provisions of this Agreement and the other Loan Documents shall be binding upon and shall inure to the benefit of the parties hereto or thereto and their respective successors and assigns permitted hereby or thereby, except that no Obligor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agent. Any Lender may assign or otherwise transfer any of its rights or obligations hereunder or under any of the other Loan Documents (i) to an assignee in accordance with the provisions of Section 14.05(b), (ii) by way of participation in accordance with the provisions of Section 14.05(e), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 14.05(h). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 14.05(e) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b) Assignments by Lender. Any Lender may at any time assign to one or more Eligible Transferees (other than a Disqualified Institution unless an Event of Default under Section 11.01(a) or (h) has occurred and is continuing) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Loans at the time owing to it) and the other Loan Documents; provided that (i) no such assignment shall be made to any Obligor, any Affiliate of any Obligor, or any employees or directors of any Obligor at any time, and (ii) no such assignment shall be made without the prior written consent of the Agent. Subject to the recording thereof by the Lender pursuant to Section 14.05(d), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of the Lender under this Agreement and the other Loan Documents, and correspondingly the assigning Lender shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) and the other Loan Documents but shall continue to be entitled to the benefits of Section 5 and Section 14.03. Any assignment or transfer by the Lender of rights or obligations under this Agreement that does not comply with this Section 14.05(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 14.05(e).

 

(c) Amendments to Loan Documents. Each of the Agent, the Lenders, Parent, and its Subsidiaries agrees to enter into such amendments to the Loan Documents, and such additional Security Documents and other instruments and agreements, in each case in form and substance reasonably acceptable to the Agent, the Lenders, Parent, and its Subsidiaries, as shall reasonably be necessary to implement and give effect to any assignment made under this Section 14.05.

 

(d) Register. The Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest or demonstrable error, and Parent, the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Parent, the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(e) Participations. Any Lender may at any time, without the consent of, or notice to, Parent or the Borrower, sell participations to any Eligible Transferee (other than to a Disqualified Institution unless an Event of Default under Section 11.01(a) or (h) has occurred and is continuing) (each, a “Participant”) in all or a portion of the Lender’s rights and/or obligations under this Agreement (including all or a portion of the Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Parent and the Borrower shall continue to deal solely and directly with such Lender in connection therewith. Any agreement or instrument pursuant to which any Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender shall not, without the consent of the Participant, agree to any amendment, modification or waiver that would (i) increase or extend the term of such Lender’s Commitment, (ii) extend the date fixed for the payment of principal of or interest on the Loans or any portion of any fee hereunder payable to the Participant, (iii) reduce the amount of any such payment of principal, or (iv) reduce the rate at which interest is payable thereon to a level below the rate at which the Participant is entitled to receive such interest. Subject to Section 14.05(f), Parent and the Borrower agree that each Participant shall be entitled to the benefits of Section 5 (subject to the requirements and limitations therein including the requirements under Section 5.03(f) (it being understood that the documentation required under Section 5.03(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 14.05(b); provided that such Participant agrees to be subject to the provisions of Section 5.04 as if it were an assignee under Section 14.05(b) above. To the extent permitted by applicable Law, each Participant also shall be entitled to the benefits of Section 4.03(a) as though it were a Lender.

 

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(f) Limitations on Rights of Participants. A Participant shall not be entitled to receive any greater payment under Sections 5.01 or 5.03 with respect to any participation than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in Law that occurs after the Participant acquired the applicable participation.

 

(g) Participant Register. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other Obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, or its other Obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest or demonstrable error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.

 

(h) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under the Loan Documents to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

14.06 Survival. The obligations of the Obligors under Sections 5.01, 5.02, 5.03, 14.03, 14.05, 14.06 , 14.09, 14.10, 14.11, 14.12, 14.13, 14.14 and the obligations of the Subsidiary Guarantors under Section 13 (solely to the extent guaranteeing any of the obligations under the foregoing Sections) shall survive the repayment of the Obligations and the termination of the Commitment and, in the case of the Lenders’ assignment of any interest in the Commitment or the Loans hereunder, shall survive, in the case of any event or circumstance that occurred prior to the effective date of such assignment, the making of such assignment, notwithstanding that the Lenders may cease to be “Lenders” hereunder. In addition, each representation and warranty made, or deemed to be made by a Borrowing Notice, herein or pursuant hereto shall survive the making of such representation and warranty.

 

14.07 Captions. The table of contents and captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.

 

14.08 Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof. Any signature (including, without limitation, (x) any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record and (y) any facsimile or .pdf signature) hereto or the other Loan Documents or to any other certificate, agreement or document related to any Loan Document or the Transactions, and any contract formation or record-keeping, in each case, through electronic means, shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereto hereby waive any objection to the contrary.

 

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14.09 Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 and 5-1402 of the New York General Obligations Law shall apply.

 

14.10 Jurisdiction, Service of Process and Venue.

 

(a) Submission to Jurisdiction. Each Obligor agrees that any suit, action or proceeding with respect to this Agreement or any other Loan Document to which it is a party or any judgment entered by any court in respect thereof may be brought initially in the federal or state courts in New York, New York and irrevocably submits to the non-exclusive jurisdiction of each such court for the purpose of any such suit, action, proceeding or judgment. This Section 14.10(a) is for the benefit of the Agent and the Lenders only and, as a result, no Lender shall be prevented from taking proceedings in any other courts with jurisdiction. To the extent allowed by any applicable Law, the Lenders may take concurrent proceedings in any number of jurisdictions.

 

(b) Alternative Process. Nothing herein shall in any way be deemed to limit the ability of the Agent and the Lenders to serve any process or summons in any manner permitted by any applicable Law.

 

(c) Waiver of Venue, Etc. Each Obligor irrevocably waives to the fullest extent permitted by law any objection that it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document and hereby further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. A final judgment (in respect of which time for all appeals has elapsed) in any such suit, action or proceeding shall be conclusive and may be enforced in any court to the jurisdiction of which such Obligor is or may be subject, by suit upon judgment.

 

14.11 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

14.12 Waiver of Immunity. To the extent that any Obligor may be or become entitled to claim for itself or its property or revenues any immunity on the ground of sovereignty or the like from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment or execution of a judgment, and to the extent that in any such jurisdiction there may be attributed such an immunity (whether or not claimed), such Obligor hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity with respect to its obligations under this Agreement and the other Loan Documents.

 

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14.13 Entire Agreement. This Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof, including any confidentiality (or similar) agreements. EACH OBLIGOR ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IN DECIDING TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR IN TAKING OR NOT TAKING ANY ACTION HEREUNDER OR THEREUNDER, IT HAS NOT RELIED, AND SHALL NOT RELY, ON ANY STATEMENT, REPRESENTATION, WARRANTY, COVENANT, AGREEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, OF OR WITH THE AGENT OR THE LENDERS OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

 

14.14 Severability. If any provision hereof is found by a court to be invalid or unenforceable, to the fullest extent permitted by any applicable Law the parties agree that such invalidity or unenforceability shall not impair the validity or enforceability of any other provision hereof..

 

14.15 Confidentiality. The Agent and each Lender agree to keep confidential all information provided to them by or on behalf of any Obligor or Subsidiary pursuant to this Agreement relating to any Obligor or Subsidiary that has not been made publicly available on “EDGAR” or is not otherwise available to the Agent or any Lender on a nonconfidential basis prior disclosure; provided that, in the case of information received from or on behalf of any Obligor or Subsidiary after the Closing Date, such information is clearly designated by such Obligor or Subsidiary as confidential in accordance with reasonable and customary procedures for handling its own confidential information; provided that nothing herein shall prevent the Agent or any Lender from disclosing any such information (i) to the Agent, any other Lender or, subject to an agreement to comply with the provisions of this Section 14.15, any Affiliate of a Lender or any Eligible Transferee or other assignee permitted under Section 14.05(b) in connection with an actual or bona fide prospective assignment permitted under Section 14.05, (ii) subject to an agreement to comply with the provisions of this Section and the request of the Borrower, to any actual or prospective direct or indirect counterparty to any Hedging Agreement (or any professional advisor to such counterparty), (iii) to its employees, officers, directors, agents, attorneys, accountants, trustees and other professional advisors or those of any of its affiliates (collectively, its “Related Parties”) subject to an agreement to comply with the provisions of this Section 14.15 or other customary professional confidentiality obligations, (iv) upon the request or demand of any Governmental Authority or any Regulatory Authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (v) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any applicable Law; provided, however, that to the extent legally permissible, such party shall give the Borrower prompt written notice of such requirement and shall reasonably cooperate (at Borrower’s sole cost) with Borrower’s attempts to limit any such disclosure, (vi) if required to do so in connection with any litigation or similar proceeding, (vii) that has been publicly disclosed (other than as a result of a disclosure in violation of this Section 14.15), (viii) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (ix) in connection with the exercise of any remedy permitted hereunder or under any other Loan Document, (x) on a confidential basis to (A) any rating agency in connection with rating Parent or any of its Subsidiaries or the Loans or (B) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers of other market identifiers with respect to the Loans or (xi) to any other party hereto; provided, further that, unless specifically prohibited by applicable law or court order, each Lender shall, to the extent reasonably practicably, notify Parent and the Borrower of any request or demand by any Governmental Authority or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such Governmental Authority) for disclosure of any such non-public information prior to disclosure of such information and shall reasonably cooperate (at the Borrower’s sole cost) with the Borrower’s efforts to limit any such disclosure.

 

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14.16 No Fiduciary Relationship. The Borrower acknowledges that the Agent and the Lenders have no fiduciary relationship with, or fiduciary duty to, the Borrower arising out of or in connection with this Agreement or the other Loan Documents, and the relationship between the Lenders and the Borrower is solely that of creditor and debtor. This Agreement and the other Loan Documents do not create a joint venture among the parties.

 

14.17 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under applicable Law (collectively, “charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Agent and the Lender holding such Loan in accordance with applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all charges payable in respect thereof, shall be limited to the Maximum Rate. To the extent lawful, the interest and charges that would have been paid in respect of such Loan but were not paid as a result of the operation of this Section shall be cumulated and the interest and charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the amount collectible at the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment, shall have been received by such Lender. Any amount collected by such Lender that exceeds the maximum amount collectible at the Maximum Rate shall be applied to the reduction of the principal balance of such Loan so that at no time shall the interest and charges paid or payable in respect of such Loan exceed the maximum amount collectible at the Maximum Rate.

 

14.18 Early Prepayment Fee; Exit Fee. If the Loans are accelerated or otherwise become due prior to their maturity date, in each case, as a result of an Event of Default (including upon the occurrence of a Insolvency Proceeding (including the acceleration of claims by operation of Law)), the amount of principal of and premium on the Loans that becomes due and payable shall equal 100% of the principal amount of the Loans plus the Early Prepayment Fee and Exit Fee in effect on the date of such acceleration or such other prior due date, as if such acceleration or other occurrence were a voluntary prepayment of the Loans accelerated or otherwise becoming due. Without limiting the generality of the foregoing, it is understood and agreed that if the Loans are accelerated or otherwise become due prior to the Maturity Date, in each case, in respect of any Event of Default (including upon the occurrence of a Insolvency Proceeding (including the acceleration of claims by operation of Law)), the Early Prepayment Fee and Exit Fee applicable with respect to a voluntary prepayment of the Loans will also be due and payable on the date of such acceleration or such other prior due date as though the Loans were voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. Any such premium payable above shall be presumed to be the liquidated damages sustained by each Lender and Parent and the Borrower agrees that it is reasonable under the circumstances currently existing. PARENT AND THE BORROWER EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE EARLY PREPAYMENT FEE AND EXIT FEE IN CONNECTION WITH ANY SUCH ACCELERATION. Parent and the Borrower expressly agree (to the fullest extent it may effectively do so) that: (i) the Early Prepayment Fee and Exit Fee is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (ii) the Early Prepayment Fee and Exit Fee shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders, Parent and the Borrower giving specific consideration in this transaction for such agreement to pay the Early Prepayment Fee and Exit Fee; and (iv) Parent and the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph.

 

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14.19 Judgment Currency.

 

(a) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent permitted by Law, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, the Agent could purchase Dollars with such other currency at the buying spot rate of exchange in the New York foreign exchange market on the Business Day immediately preceding that on which any such judgment, or any relevant part thereof, is given.

 

(b) The obligations of the Obligors in respect of any sum due to the Agent hereunder and under the other Loan Documents shall, notwithstanding any judgment in a currency other than Dollars, be discharged only to the extent that on the Business Day following receipt by the Agent of any sum adjudged to be so due in such other currency the Agent may, in accordance with normal banking procedures, purchase Dollars with such other currency. If the amount of Dollars so purchased is less than the sum originally due to the Agent in Dollars, Parent and the Borrower agree, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify the Agent against such loss. If the amount of Dollars so purchased exceeds the sum originally due to the Agent in Dollars, the Agent shall remit such excess to Parent and the Borrower.

 

14.20 USA PATRIOT Act. The Agent and the Lenders hereby notify Parent and its Subsidiaries that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation, they are required to obtain, verify and record information that identifies Parent and its Subsidiaries, which information includes the name and address of Parent and its Subsidiaries and other information that will allow such Person to identify Parent or such Subsidiary in accordance with the Patriot Act and the Beneficial Ownership Regulation.

 

14.21 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i) a reduction in full or in part or cancellation of any such liability;

 

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

 

[Signature Pages Follow]

 

105

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.

 

  BORROWER:
   
  [__]
   
  By  
    Name:  
    Title:  
   
  PARENT:
   
  [__]
   
  By  
    Name:  
    Title:  

 

  Address for Notices:
   
  [__________]
  [__________]
  Attn: [__________]
  Tel.: [__________]
  Fax: [__________]
  Email: [__________]
   
  With a copy to:
   
  Goodwin Procter LLP
   
  [__]
  Attn:
  Tel.:
  Email:

 

[SIGNATURE PAGE TO CREDIT AGREEMENT AND GUARANTY]

 

 

 

 

  SUBSIDIARY GUARANTORS:
   
  ALLURION FRANCE SAS
   
  By
    Name:
    Title:
   
  ALLURION AUSTRALIA PTY LTD.
   
  By  
    Name:
    Title:

 

  Address for Notices:
   
  [__________]
  [__________]
  Attn: [__________]
  Tel.: [__________]
  Fax: [__________]
  Email: [__________]
   
  With a copy to:
   
  Goodwin Procter LLP
   
  [__]
  Attn:
  Tel.:
  Email:

 

[SIGNATURE PAGE TO CREDIT AGREEMENT AND GUARANTY]

 

 

 

 

  AGENT:
   
  FORTRESS CREDIT CORP.
   
  By
    Name:
    Title:
                                                                                                                                      
  Address for Notices:
   
  Fortress Credit Corp.
  1345 Avenue of the Americas, 46th Floor
  New York, NY 10105
  Email: gccredit@fortress.com /
  creditoperations@fortress.com
  Tel: 212-798-6100
  Attn: David N. Brooks, General Counsel
    David Sharpe, Credit Operations
   
  With a copy (which shall not constitute notice) to:
   
  Morrison & Foerster LLP
  250 West 55th Street
  New York, NY 10019
  Attn: Mark S. Wojciechowski
  Tel.: (212) 468-8079
  Email: MWojciechowski@mofo.com

 

[SIGNATURE PAGE TO CREDIT AGREEMENT AND GUARANTY]

 

 

 

 

  LENDERS:
   
  FORTRESS CREDIT CORP.
   
  By  
  Name:
    Title:

 

                                                                                                                                     Address for Notices:
   
  [__]
  Email:
  Tel:  
  Attention:  
   
  With a copy (which shall not constitute notice) to:
   
  Morrison & Foerster LLP
  250 West 55th Street
  New York, NY 10019
  Attn: Mark S. Wojciechowski
  Tel.: (212) 468-8079
  Email: MWojciechowski@mofo.com

 

 

 

 

Schedule 1

to Credit Agreement

 

COMMITMENTS

 

Lender  Commitment   Proportionate Share 
Fortress Credit Corp.  $60,000,000    100%
TOTAL  $60,000,000    100%

 

 

 

 

 

Exhibit 10.10

 

THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.  

 

PROMISSORY NOTE

 

Principal Amount: Up to $4,750,000

Dated as of February 9, 2023

 

Compute Health Acquisition Corp., a Delaware corporation (“Maker”), promises to pay to the order of Compute Health Sponsor LLC, a Delaware limited liability company or its registered assigns or successors in interest or order (“Payee”), the principal sum of up to Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000.00) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds to such account as Payee may from time to time designate by written notice in accordance with the provisions of this Note.

 

1. Repayment. The principal balance of this Note shall be payable on the earliest to occur of (i) the date on which Maker consummates its initial business combination and (ii) the date that the winding up of Maker is effective (such date, the “Maturity Date”). The principal balance may be prepaid at any time, at the election of Maker.

 

2. Interest. This Note shall be non-interest bearing.

 

3. Drawdown Requests. Payee, in its sole and absolute discretion, may fund up to Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000.00) for (i) costs reasonably related to Maker’s consummation of an initial business combination and (ii) deposits into the trust account of Maker (the “Trust Account”) in connection with the extension of the deadline for the Maker to consummate its initial business combination from February 9, 2023 to August 9, 2023. The principal of this Note may be drawn down from time to time until the date on which Maker consummates its initial business combination, upon written request from Maker to Payee (each, a “Drawdown Request”). Each Drawdown Request must state the amount (i) to be drawn down or (ii) previously paid in respect of this Note, and must be in multiples of not less than Ten Thousand Dollars ($10,000) unless agreed upon by Maker and Payee. Payee, in its sole discretion, shall fund, or acknowledge, each Drawdown Request no later than five (5) business days after receipt of a Drawdown Request; provided, however, that the maximum amount of drawdowns collectively under this Note shall not exceed Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000.00). Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests even if prepaid. Except as set forth herein, no fees, payments or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker.

 

4. Application of Payments. All payments received by Payee pursuant to this Note shall be applied first to the payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, and then to the reduction of the unpaid principal balance of this Note.

 

5. Events of Default. The following shall constitute an event of default (“Event of Default”):

 

(a) Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date.

 

 

 

 

(b) Voluntary Bankruptcy, etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.

 

(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.

 

6. Remedies.

 

(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.

 

(b) Upon the occurrence of an Event of Default specified in Sections 5(b) and 5(c) hereof, the unpaid principal balance of this Note and all other amounts payable hereunder, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.

 

7. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.

 

8. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder.

 

9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.

 

2 

 

 

10. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.

 

11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

12. Trust Waiver. Notwithstanding anything herein to the contrary, Payee hereby waives any claim in or to any distribution of or from the Trust Account established in connection with Maker’s initial public offering (the “IPO”) or any distributions to its public stockholders therefrom, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any claim against the Trust Account or any distributions to its public stockholders therefrom for any reason whatsoever; provided, however, that upon the consummation of the initial business combination, Maker shall repay the principal balance of this Note first using the proceeds released to Maker from the Trust Account and not distributed to its public stockholders.

 

13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of Maker and Payee.

 

14. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void; provided, however, that the foregoing shall not apply to an affiliate of Payee who agrees to be bound to the terms of this Note.

 

[Signature Page Follows]

 

3 

 

 

IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.

 

  COMPUTE HEALTH ACQUISITION CORP.
     
  By: /s/ Jean Nehme
    Name:  Jean Nehmé
    Title: Co-Chief Executive Officer

 

[Signature Page to Promissory Note]

 

 

 

Exhibit 99.1

 

Allurion, a Global Leader in Weight Loss Technology, to Become Publicly Listed Through
Business Combination with Compute Health Acquisition Corp.

 

Allurion has created the world’s first full stack weight-loss platform featuring the Allurion Gastric Balloon, the world’s first and only swallowable, procedure-less gastric balloon for weight loss and has seen revenues increase 100% year over year from 2016 to 2021

 

Allurion’s technology platform includes the Allurion Virtual Care Suite, a cutting-edge digital therapeutic that combines AI-powered remote patient monitoring with a proprietary behavior change program

 

To date, over 100,000 patients in over 50 countries across six continents have been treated with the Allurion Program, experiencing weight loss, on average, of 30 pounds per patient

 

The proposed transaction includes a fully committed Private Investment in Public Equity (“PIPE”) led by RTW Investments and a non-dilutive, synthetic royalty financing from RTW Investments that will close concurrently with the business combination

 

Proposed transaction also includes additional equity investments from Former Medtronic CEO and Chairman Omar Ishrak, Former GE CEO Jeff Immelt, Leavitt Equity Partners, Naghi Group Vice Chairman Mr. Yasser Naghi, and existing Allurion investors including Novalis LifeSciences and Segulah Medical Acceleration, and Medtronic signed a non-redemption agreement with respect to a portion of its previous investment

 

Proposed transaction also includes a senior secured term loan from an affiliate of Fortress Investment Group to refinance existing Allurion debt and further extend runway, and is further supported by a $100 million Chardan Equity Facility

 

Omar Ishrak, Chairman of Compute Health and former Chairman of Intel, to join the Board of Directors as Co-Chairman and Lead Independent Director

 

Business combination and royalty financing are expected to fund the combined company to profitability based on current plans and estimates

 

NATICK, Mass. – February 9, 2023 – Allurion Technologies, Inc. (“Allurion”), a company dedicated to ending obesity, and Compute Health Acquisition Corp, a special purpose acquisition company (“Compute Health”) (NYSE: CPUH), today announced that they have entered into a definitive business combination agreement that will result in Allurion becoming a publicly listed company. Upon closing, the combined company (the “Company”) will be named Allurion Technologies, Inc. and its common stock (the “Common Stock”) is expected to be traded on the New York Stock Exchange under the symbol “ALUR”.

 

“This transaction is an important milestone for the Company. Allurion is just beginning its mission to end obesity around the world. With over 100,000 patients treated and counting, we have our sights set on touching the lives of the two billion people globally who are overweight,” said Dr. Shantanu Gaur, Allurion Co-Founder and CEO. “By combining our revolutionary Allurion Balloon with a digital platform and behavior change program, we have created the world’s first and only full-stack weight loss platform. We look forward to investing this capital to fulfill our mission.”

 

 

 

 

There are two billion adults around the world who are overweight and 650 million adults with obesity. Among children and adolescents, obesity has increased tenfold during the past four decades. Importantly, most weight loss options are not delivering on expectations: 76% of patients are not fully satisfied by diet plans and 65% of patients fear complications related to more invasive techniques. While weight loss drugs have shown to be effective, they often need to be used for life at significant costs and can result in undesirable side effects. Both patients and providers are in need of clinically proven weight loss solutions that can scale globally and address these shortcomings.

 

Allurion is tackling this unmet need by offering the world’s first full-stack weight loss platform. At the core of this platform is The Allurion Program, which combines the world’s first and only swallowable, procedure-less intragastric balloon for weight loss (the “Allurion Balloon”), a proprietary behavior change program, and the Virtual Care Suite (“VCS”), an artificial intelligence (“AI”)-powered digital therapeutic and remote patient monitoring solution.

 

The Allurion Balloon is designed to address various shortcomings of legacy gastric balloons. It is swallowed as a capsule and filled under the guidance of a health care provider without surgery, endoscopy, or anesthesia. The placement takes approximately 15 minutes during an outpatient visit. Approximately four months later, a patented ReleaseValve™ opens allowing the balloon to empty and pass out of the body naturally. The patient does not need to return to the doctor to have the balloon removed. The Allurion Balloon has demonstrated a favorable safety profile with minimal serious adverse events.

 

Through the Allurion VCS, providers can securely message their patients, conduct virtual telehealth visits, and monitor patient performance remotely with AI-powered analytics that integrate data from the Allurion App, Connected Scale, and Health Tracker. Through the Allurion App, patients can access Allurion’s proprietary behavior change program—a library of over 150 weight loss actions related to diet, nutrition, mental health, sleep, and goal setting—in over 15 languages.

 

Allurion’s revenue growth has been fueled by increasing utilization of The Allurion Program by existing providers and rapid geographical expansion. Allurion’s revenues in 2020, 2021, and 2022 were $20 million, $38 million, and $64 million, respectively. In 2022, the Company continued its worldwide expansion with the launch of the Allurion Program in Canada, Mexico, India, Australia, and Brazil. In the U.S., Allurion has launched the AUDACITY trial, an open-label, pivotal study to evaluate the safety and efficacy of the Allurion Balloon plus Moderate Intensity Lifestyle Modification Therapy Program (or “MILMTP”) versus MILMTP alone in U.S. patients.

 

“With our deep experience at the intersection of healthcare, technology, and data, we see Allurion as a breakthrough platform addressing and solving one of the largest unmet medical needs in the world,” said Omar Ishrak, Compute Health Chairman. “Allurion’s unique technologies together with its track record of consistent and exceptional growth truly differentiate it from other competitive attempts at weight loss. The company is uniquely positioned for long-term success in a massive addressable market.”

 

The proposed transaction includes a fully committed PIPE led by RTW Investments and a non-dilutive, synthetic royalty financing from RTW Investments that will close concurrently with the business combination.

 

“RTW is proud to support Allurion’s mission to end obesity as a lead equity investor in the PIPE, as well as provide complementary non-dilutive royalty financing that accelerates Allurion’s commercialization strategy,” said Roderick Wong, MD, Managing Partner and Chief Investment Officer of RTW Investments, LP. “We believe the Company is well-positioned to compete in the weight-loss market and provide a much-needed tool for healthcare providers and their patients.”

 

2

 

 

Dr. Shantanu Gaur, Co-Founder and CEO, founded Allurion in 2009 while at Harvard Medical School. Since receiving the CE-mark for the Allurion Balloon in 2015, Allurion has built its brand by studying its weight loss program in large, diverse populations. In a study of 1,770 patients from 19 centers in nine countries, Allurion Program patients lost 14% of total body weight or 30 pounds on average after just four months. In a separate study of 522 Allurion Program patients who were monitored following balloon passage, 95% of the weight lost by such patients at four months was maintained at the one-year mark. Finally, in a study of 226 patients with type 2 diabetes or pre-diabetes treated with the Allurion Program, those with type 2 diabetes reduced their hemoglobin A1c (“HbA1c”) on average by 1.5 points and those with prediabetes reduced their HbA1c by 1.1 points, putting both diseases into remission.

 

The Company will continue to be led by Dr. Shantanu Gaur, Allurion’s Co-Founder and CEO, after the business combination. The expanded Board of Directors is expected to be co-chaired by longtime Allurion investor Krishna Gupta of REMUS Capital and Omar Ishrak and include Nick Lewin, Chairman of Establishment Labs (NASDAQ: ESTA).

 

“We were the first institutional partner of Allurion more than a decade ago, and our conviction in the market opportunity, company, management, and revolutionary technology has only grown,” said Krishna Gupta, CEO of REMUS Capital. “The global opportunity to reliably drive safe and effective weight loss taps both medical and aesthetic needs of consumers and has unlimited potential. This transaction will accelerate Allurion’s path to becoming a global market leader in the weight loss space leveraging its digital DNA and cutting-edge science.”

 

The proposed transaction also includes a senior secured term loan from an affiliate of Fortress Investment Group to refinance existing Allurion debt and further extend runway, and is further supported by a $100 million Chardan Equity Facility (the “ChEF”). Under the terms of the ChEF, after the proposed business combination has closed, Chardan Capital Markets LLC (“Chardan”) has committed to purchase up to an aggregate of $100 million of Allurion common stock from time to time at the request of Allurion. This facility will provide Allurion with the ability to raise additional capital opportunistically in the future.

 

“Allurion has developed a unique technology and differentiated portfolio of intellectual property,” said Christopher LiPuma, Director at Fortress. “In particular, the Company’s strong IP position in the weight loss space stands out as a key asset that we believe will provide the foundation for future growth and potential partnerships.”

 

3

 

 

Key Transaction Terms

 

Upon the closing of the proposed transaction, it is expected that the Company will issue, and assume warrants and other equity incentive arrangements representing or underlying, in the aggregate, 37,812,000 shares of the Company to Allurion equityholders, with the consideration payable to Allurion equityholders based on an assumed $500 million pro forma enterprise value of the combined Company. The proposed transaction also includes a minimum cash condition of $70 million (net of certain expenses) and is expected to provide a minimum of $87 million of gross cash proceeds.

 

In connection with the proposed transaction, holders of Compute Health Class A common stock will have the right to redeem their Compute Health Class A shares. If holders of Compute Health Class A common stock elect not to redeem their Compute Health Class A shares in connection with the proposed transaction, such holders will receive, at the closing of the proposed transaction, an additional 0.420455 shares of the Company for each non-redeemed share of Compute Health Class A common stock.

 

The proposed transaction has been approved by the boards of directors of each of Compute Health and Allurion. The proposed transaction will require the approval of the stockholders of each of Compute Health and Allurion and is subject to other customary closing conditions, including the receipt of certain regulatory approvals and a registration statement on Form S-4 (the “Registration Statement”) being declared effective by the Securities and Exchange Commission (the “SEC”). The proposed transaction is expected to close in the first half of 2023.

 

Advisors

 

Jefferies LLC (“Jefferies”) is acting as exclusive financial advisor and exclusive capital markets advisor to Allurion and Goodwin Procter LLP is acting as legal advisor to Allurion. Kirkland & Ellis LLP is acting as legal advisor to Jefferies. Credit Suisse Securities (USA) LLC (“Credit Suisse”) is acting as exclusive financial advisor, exclusive capital markets advisor and exclusive placement agent to Compute Health and Skadden, Arps, Slate, Meagher & Flom LLP is acting as legal advisor to Compute Health. Davis Polk & Wardwell LLP is acting as legal advisor to Credit Suisse.

 

Transaction Documents

 

Documents pertaining to the proposed transaction will be filed by Compute Health with the SEC in a Current Report on Form 8-K, which will be accessible at www.sec.gov.

 

About Allurion

 

Allurion is dedicated to ending obesity. The Allurion Program is a weight loss platform that combines the Allurion Gastric Balloon, the world’s first and only swallowable, procedure-less gastric balloon for weight loss, the Allurion Virtual Care Suite including the Allurion Mobile App for consumers, Allurion Insights for health care providers featuring the Iris AI Platform, and the Allurion Connected Scale and Health Tracker devices. The Allurion Virtual Care Suite is also available to providers separately from the Allurion Program to help customize, monitor and manage weight loss therapy for patients regardless of their treatment plan: gastric balloon, surgical, medical or nutritional.

 

For more information about Allurion and the Allurion Virtual Care Suite, please visit www.allurion.com.

 

Allurion is a trademark of Allurion Technologies, Inc. in the United States and countries around the world.

 

4

 

 

About Compute Health

 

Compute Health (NYSE: CPUH) is a special purpose acquisition company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. Compute Health is led by the management team of Omar Ishrak, Jean Nehmé and Joshua Fink. Compute Health’s strategy is to focus on healthcare businesses that are already leveraging or have the potential to leverage computational power, with an emphasis on companies in the medical device space, including imaging and robotics.

 

For more information about Compute Health please visit www.compute-health.com.

 

Important Information About the Proposed Transaction and Where to Find It

 

This press release relates to a proposed business combination between Allurion, Compute Health and Allurion Technologies Holdings, Inc., a wholly-owned subsidiary of Allurion which will be the publicly-listed Company following the consummation of the proposed transaction (“Pubco”). Pubco intends to file the Registration Statement with the SEC, which will include a document that serves as a proxy statement and prospectus of Compute Health and Pubco and a full description of the terms of the proposed transaction. The proxy statement/prospectus will be mailed to Compute Health’s stockholders as of a record date to be established for voting at the Compute Health stockholders’ meeting relating to the proposed transaction. Compute Health and Pubco may also file other documents regarding the proposed transaction with the SEC. This press release does not contain all of the information that should be considered concerning the proposed transaction and is not intended to form the basis of any investment decision or any other decision in respect of the proposed transaction. Compute Health’s stockholders and other interested persons are advised to read, when available, the Registration Statement and proxy statement/prospectus and any amendments thereto and all other relevant documents filed or that will be filed in connection with the proposed transaction, as these materials will contain important information about Allurion, Compute Health and the proposed transaction. The Registration Statement and the proxy statement/prospectus and other documents that are filed with the SEC, once available, may be obtained without charge at the SEC’s website at www.sec.gov, or by directing a written request to Compute Health, 1100 N Market Street 4th Floor, Wilmington, DE 19890.

 

NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THIS PRESS RELEASE PASSED UPON THE MERITS OR FAIRNESS OF THE PROPOSED TRANSACTION OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS PRESS RELEASE. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.

 

Participants in the Solicitation

 

Compute Health, Allurion, Pubco, certain stockholders of Compute Health, and certain of Compute Health’s, Allurion’s and Pubco’s respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from the stockholders of Compute Health with respect to the proposed transaction. A list of the names of such persons and information regarding their interests in the proposed transaction will be contained in the Registration Statement and proxy statement/prospectus, when available. Stockholders, potential investors and other interested persons should read the Registration Statement and proxy statement/prospectus carefully when they become available and before making any voting or investment decisions. Free copies of these documents may be obtained from the sources indicated above, when available.

 

5

 

 

Forward-looking Statements

 

This press release contains certain “forward-looking statements” within the meaning of the federal U.S. securities laws with respect to Compute Health, Allurion and the proposed transaction between them, the benefits of the proposed transaction, the amount of cash the proposed transaction will provide the Company, the anticipated timing of the proposed transaction, the services and markets of Allurion, the expectations regarding future growth, results of operations, performance, future capital and other expenditures, competitive advantages, business prospects and opportunities, future plans and intentions, results, level of activities, performance, goals or achievements or other future events. These forward-looking statements generally are identified by words such as “anticipate,” “believe,” “expect,” “may,” “could,” “will,” “potential,” “intend,” “estimate,” “should,” “plan,” “predict,” or the negative or other variations of such statements. They reflect the current beliefs and assumptions of Compute Health’s management and Allurion’s management and are based on the information currently available to Compute Health’s management and Allurion’s management. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual results or developments to differ materially from those expressed or implied by such forward-looking statements, including but not limited to: (i) the risk that the proposed transaction may not be completed in a timely manner or at all, which may adversely affect the price of Compute Health’s securities; (ii) the risk that the proposed transaction may not be completed by Compute Health’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by Compute Health; (iii) the failure to satisfy the conditions to the consummation of the proposed transaction, including, but not limited to, the approval of the business combination agreement by the stockholders of Compute Health and the stockholders of Allurion, the satisfaction of the minimum cash amount and the receipt of certain governmental and regulatory approvals; (iv) changes to the proposed structure of the proposed transaction that may be required, or considered appropriate, as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the proposed transaction; (v) the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; (vi) the ability to complete the PIPE investment, the senior secured term loan, the ChEF and the RTW Investments synthetic royalty financing in connection with the proposed transaction; (vii) the Company’s ability to acquire sufficient sources of funding if and when needed; (viii) the effect of the announcement or pendency of the proposed transaction on Allurion’s business relationships, operating results and business generally; (ix) risks that the proposed transaction disrupts current plans and operations of Allurion; (x) the ability of the Company to implement business plans, forecasts and other expectations after the completion of the proposed transaction, and identify and realize additional opportunities; (xi) significant risks, assumptions, estimates and uncertainties related to the projected financial information with respect to Allurion; (xii) the outcome of any legal proceedings that may be instituted against Allurion, Pubco or Compute Health following the announcement of the business combination agreement or the proposed transaction; (xiii) the Company’s ability to commercialize current and future products and services and create sufficient demand among health care providers and patients; (xiv) the Company’s ability to successfully complete current and future preclinical studies and clinical trials of the Allurion Balloon and any other future product candidates; (xv) the Company’s ability to obtain market acceptance of the Allurion Balloon as safe and effective; (xvi) the Company’s ability to cost-effectively sell existing and future products through existing distribution arrangements with distributors and/or successfully adopt a direct sales force as part of a hybrid sales model that includes both distributors and a direct sales effort; (xvii) the Company’s ability to obtain regulatory approval or clearance in the U.S. and certain non-U.S. jurisdictions for current and future products and maintain previously obtained approvals and/or clearances in those jurisdictions where Allurion’s products and services are currently offered; (xviii) the Company’s ability to accurately forecast customer demand and manufacture sufficient quantities of product that patients and health care providers request; (xix) the Company’s ability to successfully compete in the highly competitive and rapidly changing regulated industries in which Allurion operates, and effectively address changes in such industries, including changes in competitors’ products and services and changes in the laws and regulations that affect the Company; (xx) the Company’s ability to successfully manage future growth and any future international expansion of Allurion’s business and navigate the risks associated with doing business internationally; (xxi) the Company’s ability to obtain and maintain intellectual property protection for its products and technologies and acquire or license intellectual property from third parties; (xxii) the ability of the Company to retain key executives; (xxiii) the ability to obtain and maintain the listing of the Company’s securities on a national securities exchange; (xxiv) the Company’s ability to properly train physicians in the use of the Allurion Gastric Balloon and other services it offers in its practices; (xxv) the risk of downturns in the market and Allurion’s industry including, but not limited to, as a result of the COVID-19 pandemic; (xxvi) fees, costs and expenses related to the proposed transaction; (xxvii) the risk that the collaboration agreement with Medtronic will not be signed and that the parties will not achieve the expected benefits, incremental revenue and opportunities from such arrangement; (xxviii) the failure to realize anticipated benefits of the proposed transaction or to realize estimated pro forma results and underlying assumptions, including with respect to estimated redemptions by Compute Health’s public stockholders; and (xxix) sanctions against Russia, reductions in consumer confidence, heightened inflation, production disruptions in Europe, cyber disruptions or attacks, higher natural gas costs, higher manufacturing costs and higher supply chain costs. The foregoing list of factors is not exclusive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of Compute Health’s Form S-1 (File No. 333-252245) and Annual Report on Form 10-K for the year ended December 31, 2021 and the proxy statement/prospectus, when available, and other documents filed by Compute Health and Pubco from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date on which they are made, and none of Allurion, Pubco or Compute Health assume any obligation to update or revise any forward-looking statements or other information contained herein, whether as a result of new information, future events or otherwise. You are cautioned not to put undue reliance on these forward-looking statements. None of Compute Health, Allurion or Pubco gives any assurance that Compute Health or Allurion, or the Company, will achieve its expectations.

 

6

 

 

Non-solicitation

 

This press release and the information contained herein is not a proxy statement/prospectus or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential business combination or any other matter and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of Compute Health, Allurion, Pubco or the Company, or a solicitation of any vote or approval, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.

 

Contacts

 

Media

Sean Leous

Sean.Leous@westwicke.com

 

Investor

Mike Cavanaugh

Mike.Cavanaugh@westwicke.com

 

 

7

 

Exhibit 99.2

 

© 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Investor Presentation February 2023

 

 

We have one goal: End Obesity

 

 

Allurion Executive Team Shantanu Gaur, M.D. Co - Founder, CEO Founded Allurion in 2009 at Harvard Medical School Ram Chuttani, M.D. Chief Medical Officer 20+ years as Harvard professor and Director of Endoscopy at BIDMC. Over 100 original scientific articles Chris Geberth Chief Financial Officer 25+ years experience, EVP of Finance at Cynosure (acquired for $1.7B) Benoit Chardon Chief Commercial Officer 20+ years experience. Head of body contouring at Allergan. Former VP at Zeltiq (acquired for $2.4B) and Galderma Joyce Johnson VP of Regulatory / Quality 25+ years as an RA/QA leader at Smith & Nephew, Analogic, Draeger, and SpaceLabs Chris Robinson SVP Global Operations and R&D 25+ years experience, led Manufacturing at Candela. Formerly ev3, Covidien, and Boston Scientific Emily Pullen VP People 15+ years of experience. Formerly at Globalization Partners, Accenture, and AON Jeff Feldgoise SVP Digital Product 20+ years as digital product leader in fintech and healthcare. Launched Fidelity.com and Fidelity Go Javier Ibanez VP of International Sales 30+ years of experience in global medical device sales and finance at Teoxane, Zeltiq, and Galderma Ryan Webb VP Engineering 15+ years of experience. Formerly at Candela, Fresenius, Stryker, Boston Scientific 3 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL

 

 

Dr. Robert Langer Chairs Allurion’s Scientific Advisory Board © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 4 One of only 12 Institute Professors Co - Founder Inventor on over 1,300 patents in materials science and drug delivery Most cited engineer in history “Allurion has clearly demonstrated that its product is a game - changer for patients and has the potential to develop an exciting pipeline of products that address different applications . I am delighted to now lead Allurion’s Scientific Advisory Board while contributing to the company’s mission to end obesity . ” ( 1 ) From Device to Platform Weight Loss Drug Delivery Stomach Sensing Diabetes Source: https://langerlab.mit.edu/langer - bio/. (1) https:// www.businesswire.com/news/home/20221118005048/en/Allurion - Announces - Appointment - of - Moderna - Co - Founder - and - MIT - Institute - Professo r - Robert - S. - Langer - as - Chair - of - its - Scientific - Advisory - Board

 

 

Compute Health Management Team 5 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Dr. Omar Ishrak Chairman, Director Industry leaders with significant experience operating, investing, and capital raising in public and private markets across various geographies Joshua Fink Co - Chief Executive Officer, Director Dr. Jean Nehmé Co - Chief Executive Officer x x x x Gwendolyn Watanabe Director CPUH raised gross proceeds of ~$863mm and went public on NYSE in February 2021 (NYSE:CPUH.U) Ophir Holding Luma Bio - IT SPV Hani Barhoush Director Michael Harsh Director Extensive experience building, identifying, acquiring, operating and creating stockholder value as the leaders of leading medical technology, tech - enabled and investment companies Deep and broad networks of senior - level investment professionals and leading business operators Support Allurion’s transition to US public markets and its global expansion

 

 

Omar Ishrak is a Proven Leader Within the Healthcare Industry © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 50+ deals representing $60bn+ 45,000 90,000 2011 2020 Employees $16 $29 2011 2020 $40+ $150+ June 2011 February 2020 35+ 2011 2020 Revenue ($bn) Market Cap ($bn) Conditions Treated 7+ 2011 2020 Omar Ishrak’s operational strategy at Medtronic created significant value for shareholders 2009 - 2011: President, CEO of Healthcare Systems Board Involvement: Omar Ishrak’s deep leadership experience in Medtech industry spanning 30+ years 2011 - 2020: CEO, Chairman of the Board at ~$50bn +45,000 +$13 +$110 +35 70+ Lives Improved Per Year (M) (1) +68 75+ (1) Lives improved are defined as the number of people whose lives are improved by Medtronic products and therapies. 6

 

 

Potential Win - Win Opportunity (1) The Medtronic - Allurion Potential Partnership Opportunity 7 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Digital Platform Balloon Surgery Partnership to expand access for Allurion’s technology Incremental revenue opportunity for both companies First steps toward defining a reimbursable obesity care pathway Access to Allurion’s established patient acquisition strategy and digital platform Opportunity to: Develop bundled offering that includes Allurion Program and bariatric surgery Expand use of Allurion Program in select weight loss centers covered by Medtronic’s bariatric surgery channel Sell Allurion balloons and Virtual Care Suite licenses (SaaS) into new accounts known by Medtronic in select geographies Monetize unconverted leads in Allurion’s funnel that are better candidates for weight loss surgery than the Allurion balloon (1) Revenue projections do not factor in the Medtronic partnership which represents further upside to Allurion’s forecast.

 

 

Sources Uses Cash from Non - Redeeming Shareholders and PIPE (5) $45 Cash to Balance Sheet $70 Cash from Royalty Financing and Debt Refinancing $42 Estimated Transaction Fees $17 (6) Total $87 Total $87 Illustrative Transaction Summary 8 Allurion Technologies, a weight loss technology company, plans to enter into a definitive merger agreement with Compute Health Acquisition Corp. (NYSE:CPUH), valuing Allurion at an assumed pro forma enterprise value of $500 million At least $87 million of gross proceeds (1) , through a combination of: ▪ Proceeds from non - redemption agreements and PIPE commitments with investors purchasing shares at a price of $7.04 per share ▪ Cash from royalty financing and debt refinancing Potential incremental proceeds from CPUH’s cash in trust (2) Allurion to raise a $15 million bridge financing following announcement of merger with CPUH Seller earn - out of 9.0 million shares vesting at following schedule (50% at $15.00 and 50% at $20.00) Sponsor to retain ~16% of its founder shares (3.406 million) (3) Existing shareholders of Allurion to roll 100% of their equity and maintain ~80% ownership in the combined company (1)(2)(4) Illustrative Transaction Summary Illustrative Pro Forma Enterprise Value (1)(4)(7) 80% 7% 13% Allurion's Rollover Equity (9) Non - Redeeming SHs and PIPE Sponsor Shares 47 (8) Illustrative Sources & Uses (1) Illustrative Pro Forma Ownership (4) (1) (2) (3) (4) Assumes minimum cash of $70 million to balance sheet. CPUH investors not redeeming to receive 0.420 incremental shares for each share held by such investor. Includes 0.120 million Class B shares held by CPUH directors. Includes estimated impact of 0.320 million shares from sponsor loan conversion at $7.04 per share and 0.420 additional shares per sponsor share (excluding director shares and shares from sponsor loan conversion) held. Share count includes 38.312 million Allurion rollover equity shares, 6.378 million Non - Redeeming Shareholders and PIPE shares, and 3.406 million sponsor shares. Allurion rollover equity shares includes 0.500 million shares to be issued to senior secured lender and royalty debt provider at closing. Allurion rollover shares subject to being reduced by up to an additional 1.500 million shares based on the net cash available at closing, and such shares would instead be issued to the senior secured lender and royalty debt provider. Excludes impact of 21.563 million public warrants. Includes Medtronic Non - Redemption Agreement, which is conditioned upon Medtronic and Allurion entering into a sales agency agreement. Includes expenses related to legal, financial, capital markets, and tax advisory services and regulatory filing process. Assumed pro forma post - transaction equity value at an illustrative $10 per share price. Target Net Debt as of 12/31/2022 unaudited financials. Includes 0.500 million shares issuable to senior secured lender and royalty debt provider at close. © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL (5) (6) (7) (8) (9) Plus: Royalty Financing and Debt Refinancing 42 Less: Cash from Transaction (70) Assumed Pro Forma Enterprise Value $500 ($mm, except per share amounts) Pro Forma Shares Outstanding 48.1 Assumed Post - Transaction Equity Value $481 Plus: Target Net Debt

 

 

Allurion Aims to Solve One of the Biggest Problems in Healthcare, is Growing at an Exceptional Rate, and is Nearing Several Multi - Billion Dollar Catalysts © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 9 1 Obesity is one of the biggest unmet medical needs in the world and COVID amplified it 2 Allurion delivers on average 30 pounds of weight loss and remission of Type 2 Diabetes in just 4 months and 95% weight maintenance at 1 - year * 3 100,000+ patients treated with 100%+ revenue CAGR in established distribution channels with clear path to 80%+ margins 4 Management team is seasoned and public - company ready 5 Additional regulatory approvals, product pipeline, and digital platform expansion are catalysts for future opportunities *Sources: Obes Surg. 2020; 20(9):3354 - 62. Ienca et al. Obesity Week 2020 and 2021.

 

 

Allurion At - A - Glance $1 $3 $7 $13 $20 $38 $64 $100 $140 2016 2017 2018 2019 2020 2021 2022E 2023E 2024E Revenue ($M) 85% CAGR 10 107% 2016 - 21 Revenue CAGR 106% 2016 - 21 Balloons Sold CAGR 1M digital weigh - ins in 2021 10M+ digital weigh - ins by 2023 76% 2021 gross margin 82% 2024E gross margin © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Note: Historical periods are based on AICPA audits. Revenue projections do not factor in the Medtronic partnership which represents further upside to Allurion’s forecast.

 

 

The Problem

 

 

2 Billion Adults Globally with BMI 25+: Large Opportunity in Existing and Future Markets Currently launched in 50+ countries that represent 40% of TAM Launching in 15 countries over next 2 years that represent 60% of TAM* Existing Markets UK Italy France Saudi Arabia UAE Canada Mexico Australia India 2022 Launches 12 USA Brazil China 2023+ Launches Spain © 2023 ALLURION TECHNOLOGIES – CONFIDENTIAL Source: Allurion market research; TAM = Total Addressable Market. *2023+ planned launches subject to obtaining regulatory approvals. EU market subject to renewal of approval. Allurion Balloon is currently not approved for sale in the United States.

 

 

COVID Exacerbated Obesity and Put the Need for Digital Health in the Spotlight Obesity Increased During the Pandemic Healthcare Went Digital © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 13 43% of adults surveyed self - reported weight gain during the pandemic 1 70% are concerned about the weight gain 1 80% of patients prefer digital communication with their provider some of the time 2 44% mostly or always prefer to use digital communication 2 (1) (2) WebMD, https:// www.webmd.com/diet/news/20211220/americans - turning - to - trendy - diets - to - shed - pandemic - pounds. Forbes, https:// www.forbes.com/sites/debgordon/2021/12/07/new - survey - shows - consumers - expect -- better - healthcare - experiences - but - are - often - disappointed/.

 

 

Why We Believe Other Weight Loss Innovations Fail 14 Poor Economics High Risks Poor Experience Limited Channels Flawed Go - To - Market Execution Bariatric surgery is estimated to be $15,000 out - of - pocket 2 Drugs are estimated to be $1,000 per month 3 Invasive procedures are inherently risky in a high BMI population 1 Lack of remote patient monitoring and behavior modification Most providers lack infrastructure and training to deliver comprehensive weight loss Previous companies failed to embrace modern - day digital advertising and account training techniques to drive growth © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL (1) (2) (3) ASA, https:// www.asahq.org/madeforthismoment/preparing - for - surgery/risks/obesity/. ObesityCoverage.com, https:// www.obesitycoverage.com/weight - loss - surgery - insurance - coverage - and - costs/. GoodRx, https:// www.goodrx.com/wegovy.

 

 

Significant Market Opportunity Exists for Allurion Multiple future catalysts will further expand TAM: B2B Digital SaaS Product Adolescent indication X - Ray Free Placement 8 - month Balloon Total population in considered areas across 8 geographies Target ages (18 - 65) and target BMI (>27) Target household income Bothered by their weight Ready to act in the next 2 years Would consider HCP intervention Would consider Allurion 100% 547.6 million 33.6% 183.8 million 26.8% 146.7 million 19.7% 108.2 million 13.1% 71.9 million 7.2% 39.3 million 4.3% 23.7 million $24 billion opportunity globally: © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 15 Source: Allurion Market Research (2018).

 

 

Our Solution

 

 

The Allurion Program Combines a Revolutionary Medical Device, Cutting - Edge Digital Therapeutic, and Behavior Change Program 17 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL The Allurion ® Balloon The Allurion Virtual Care Suite “Honeymoon from Hunger” Behavior Change Program The world’s first and only procedureless Ρ weight loss device Swallowed and passed 4 months later AI - powered digital therapeutic and remote patient monitoring solution Seamlessly integrated into the weight loss program Clinically proven program featuring 150 weight loss actions Aims to deliver weight loss for life

 

 

AI - Powered Experiences Aiming to Provide Superior Outcomes © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 18 AI - Powered Behavior Change Telehealth Coaching Real - time Messaging High Weight Loss High Durability High Engagement Millions of data points collected AI - Powered Remote Patient Monitoring Patient Provider

 

 

Allurion Patients Achieve 30 Pounds of Life - Changing Weight Loss on Average and Keep 95% of it Off at 1 - Year Weight Loss Weight Maintenance Diabetes Remission 30 pounds at 4 months 29 pounds at 12 months 30 pounds with 1 balloon at 4 months 50 pounds with 2 balloons at 12 months - 1.5 HbA1c - 1.5 in HbA1c in diabetics - 1.1 in HbA1c in prediabetics © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 19 95% at 12 months Sources: Obes Surg. 2020; 20(9):3354 - 62. Ienca et al. Obesity Week 2020 and 2021. All values shown on slide are means.

 

 

The Allurion Balloon was Designed to be Safer than Alternatives Patients Value Procedureless… …and Procedureless Should Lead to Fewer SAEs 3X more patients prefer Allurion over surgery 6X more patients prefer Allurion over products that require endoscopy and anesthesia 65% of patients cite fear of complications with endoscopy and anesthesia 7.5% 10.0% 0.35% 0.2% Reshape Orbera Allurion (Ienca et al) Device - or Procedure - Related SAE Rates SAE rate over 10X lower than other liquid - filled balloons* Allurion Balloon is designed to reduce risk of complications Removing endoscopy and anesthesia further reduces risk © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 20 N=1,770 N=106,033 Allurion (post - market complaints) (1) Source: Allurion market research, Reshape SSED (Jul 2015), Orbera SSED (Aug 2015), Obes Surg. 2020; 20(9):3354 - 62. *Reshape, Orbera, and Allurion were not compared in head - to - head studies. SAE = serious adverse event. (1) Reflects post - market complaints from January 2016 through October 2022.

 

 

Business Model

 

 

Our B2B2C Business Model is Designed to Create an Economic Win - Win - Win For All Stakeholders by Leveraging Our Procedureless Experience 22 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Premium Pricing that leverages innovation Industry - Top Gross Margin driven by high ASP and low COGS Industry - Top Profitability: better than Botox Open Channels: no restrictions on type of doctor Affordability: fraction of cost of invasive procedures Low Friction: no inpatient hospital stays Provider Patient

 

 

We Believe Our Business Model Creates a Powerful Flywheel Effect 23 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL ~70% of our business comes from existing providers Higher demand leads to higher account productivity B2B success stories drive organic account acquisition Improve patient journey at clinics drives improved satisfaction and consumer peer to peer referrals A Generate consumer demand B Grow account productivity C Acquire high potential accounts

 

 

> 10% Weight Loss* <1% Complications* Digital Experience Provider Profit Affordable We Believe Allurion is the Only Weight Loss Company that Does it All © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 24 *Products not compared in head - to - head trials.

 

 

Strong Competitive Moat Protects our Business and Raises Barrier to Entry © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 25 40+ Patents and 10+ Years of Manufacturing Trade Secrets 50+ Regulatory Approvals Leader in Weight Loss, Safety, and Provider Economics Growing database to feed AI algorithms Brand that Patients and Providers Trust and Love

 

 

Future Opportunities

 

 

Our 3 - Year Strategy © 2021 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Expand revenues in existing markets Launch in new markets Expand our platform to engage patients for a lifetime 27 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL

 

 

Expand Revenues in Existing Markets Even at 100% CAGR, our TAM is still untapped © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 28 80 - 200+% CAGR in top direct markets High growth across all regions globally <0.2% penetration rate globally Reaching 1% penetration in just existing markets today translates to ~$500M of annual revenue 0.10% 0.09% 0.08% 0.07% 0.06% 0.05% 0.04% 0.03% 0.02% 0.01% 0.00% 5000 4500 4000 3500 3000 2500 2000 1500 1000 500 0 France Balloons Sold 2017 2018 2019 2020 2021 Penetration 0.00% 0.05% 0.10% 0.15% 0.20% 0.25% 0.30% 0 1000 4000 3000 2000 5000 8000 7000 6000 2017 2018 2019 2020 2021 Spain Balloons Sold Penetration 0.00% 0.01% 0.02% 0.03% 0.04% 0.05% 0.06% 0 500 1000 1500 2000 2500 3000 3500 2017 2018 2019 2020 2021 UK Balloons Sold Penetration 86% CAGR 89% CAGR 227% CAGR

 

 

Expand Revenues in Existing Markets Potential upside opportunities not included in projections © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 29 B2B SaaS Product Adolescents Ultrasound Placement 8 - month Balloon +35% TAM Expand label for use below 18 years +10% TAM Remove need for imaging during placement +5% TAM Increase residence time to serve a higher BMI population +50% TAM Sell to 400 + existing Allurion accounts to serve all weight loss patients 100%+ increase in TAM through potential opportunities that leverage our existing sales force and account relationships Note: Total addressable markets are based on management estimates. See “Forward - Looking Statements” and “Industry and Market Data” in Appendix.

 

 

Anticipated Launches in High Potential New Markets* Future Market Openings Will Drive Continued Growth © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 30 700M 1.1B 1.3B 2021 2022 2023 2024+ 2 Billion 44 countries currently launched Source: Allurion Market Research. *Values denote estimated number of individuals with BMI 25+ in launched territories. Only select countries are listed.

 

 

IDE for AUDACITY Trial Has Been Approved by FDA Enrollment begun in May 2022 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Balloon 2 Break Balloon 1 Break Moderate Intensity Lifestyle Therapy Moderate Intensity Lifestyle Therapy W0 W16 W24 W40 W48 Treatment Group ( n = 250) Control Group ( n = 250) Co - Primary Endpoints: 50% responder rate (>5% TBWL) at 48 weeks 3.0% total body weight loss (TBWL) superiority margin at 48 weeks Open - label, sequential balloon design is expected to boost weight loss and durability Conservative sample size and powering 48 - week endpoint may open door to reimbursement 31 IDE = Investigational Device Exemption.

 

 

Sequential Use of Allurion Balloon In a study of 42 patients, sequential balloon use led to an average weight loss of 22kg at 1 - year 32 % Total Body Weight Loss 0.0 - 5.0 - 15.0 - 20.0 - 25.0 - 30.0 - 10.0 Balloon #1 Balloon #2 - 14% - 10% +2% - 23% % Total Body Weight Loss Break © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Responder Rate ≥5% ≥10% ≥20% ≥30% %TBWL % of Patients 100% 97.6% 64.7% 26.1% Sources: Ienca et al. Sequential Elipse Balloon Treatment: 1 - Year Weight Loss Results Approximate Bariatric Surgery Results . Orbera SSED (Aug 2015).

 

 

The AUDACITY Trial Design Reflects FDA’s Updated Recommendations for Weight Loss Devices and Builds Upon the ENLIGHTEN Trial 33 Pre - FDA White Paper Post - FDA White Paper © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL The ENLIGHTEN Trial IDE approved in 2016, Read - out in 2019 1 Allurion Balloon cycle Sham - controlled design 4 - month endpoints Met endpoint #1 on responder rate Did not meet endpoint #2 on superiority margin due to sham overperformance Observed stronger response at 6 months that would have met endpoint Submitted as part of PMA in 2020 FDA requested additional data in Major Deficiency Letter to support longer treatment duration and higher efficacy PMA withdrawn, IDE approved for new AUDACITY trial design The AUDACITY Trial IDE approved in 2021 2 Allurion Balloon cycles Open - label design 1 - year endpoints Efficacy threshold commensurate to favorable safety profile shown in ENLIGHTEN Utilizes balloon with longer dwell time than version in ENLIGHTEN FDA White Paper on Weight Loss Devices (2019) Issued after safety issues encountered with Orbera and Reshape Balloons Increased efficacy requirements Increased minimum treatment duration to 6 months with preference for 1 - year outcomes

 

 

Digital Front Door + Infinite Corridor Allurion is Building a Full - Stack Weight Loss Platform 34 Overweight BMI 25 - 30 1.25B people Obesity BMI 30 - 40 590M people Severe Obesity BMI 40+ 60M people APP SCALE TRACKER BEHAVIOR CHANGE PROGRAM Procedureless Interventions BALLOON MEDICATION FOOD Surgery For Patients For Providers Allurion Insights BILLING SUPPORT RPM + ANALYTICS SECURE MESSAGING TELEHEALTH RYGB SLEEVE GASTRECTOMY © 2023 ALLURION TECHNOLOGIES - CONFIDENTIAL Sources: WHO (https:// www.who.int/news - room/fact - sheets/detail/obesity - and - overweight); CDC (https:// www.cdc.gov/nchs/products/databriefs/db360.htm).

 

 

Financial Overview

 

 

2020 2021 2022E 2023E 2024E $3 $7 2017 2018 2019 $13 $20 $38 $64 $100 85% CAGR Strong management track record of delivering high growth and beating internal forecast in each of last 5 years 85% revenue CAGR through 2024 80%+ gross margins in 2024 Potential revenue upsides not included: We Believe Further Investment Should Lead to Continued Strong Growth © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Revenue ($M) $1 2016 Financial Summary Digital B 2 B (SaaS) revenues Adolescent label expansion Device improvements 8 - month Balloon sales Strategic partnership with Medtronic Revenue Bridge ($M) 36 $140 $38 $49 $33 $20 $140 $160 $140 $120 $100 $80 $60 $40 $20 $0 2021 Revenue Existing Providers New Providers in Existing Markets New Markets 2024 Revenue Note: Historical periods are based on AICPA audits. Revenue projections do not factor in the Medtronic partnership which represents further upside to Allurion’s forecast.

 

 

Financial Summary 37 ($ in Millions) 2021 2022E 2023E 2024E Revenue $38 $64 $100 $140 % Growth 87% 68% 56% 40% ( - ) Cost of Goods Sold $(9) $(14) $(20) $(25) Gross Profit $29 $50 $80 $115 % Margin 76% 78% 80% 82% ( - ) S&M $(25) $(50) $(60) $(70) Operating Income $(12) $(32) $(29) $1 % Margin (32%) (50%) (29%) 1% Note: Revenue projections do not factor in the Medtronic partnership which represents further upside to Allurion’s forecast. Operating Income excludes stock - based compensation, fair value remeasurements, and foreign currency exchange rate fluctuations. © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL Revenue – The assumptions underlying the revenue projections are based on the Company’s anticipated average selling prices and anticipated growth in market share in existing markets. It also assumes revenue from product launches in key markets including Australia, Canada, Mexico, and India in 2022, and pending regulatory approvals, in Brazil, South Korea, and Taiwan in 2023. Gross Profit and Operating Income – The assumptions underlying gross profit and operating income projections are improved gross profit through economies of scale, an increase in sales and marketing expense to expand brand awareness and drive procedure volume, executing clinical trials for regulatory approvals, funding of the R&D pipeline and additional manufacturing expenses to support global expansion.

 

 

Use of Proceeds Focused on Commercial Growth © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 38 Drive top line revenue through investment in sales and marketing Execute clinical trials for regulatory approvals and label expansion Launch digital B2B SaaS model Expand manufacturing to support geographical expansion Fund R&D pipeline of continuous improvement and next - generation projects Sales & Marketing General & Administrative Clinical Quality & Regulatory Digital R&D Operations Note: Use of proceeds are illustrative and subject to change. Assumes no public shares are redeemed.

 

 

Investment Highlights 39 © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 1 Large Addressable Market with COVID - 19 Tailwinds 3 Core Business Growing at a 100%+ CAGR with Clear Path to 80%+ Margins 4 Superior, Clinically and Commercially Proven, Tech - Enabled, Disruptive Innovation 5 Strong Competitive Moat with Broad Patent Coverage Creates a High Barrier to Entry 6 Regulatory Approvals, Digital Platform Expansion, and Pipeline will Fuel Profitable Future Growth Public - Ready Team with 6 - Year Commercial Track Record and 8 Years of Audited Financials 2

 

 

Appendix

 

 

Fully Diluted Ownership at Close Share Ownership ≤ $ 10.00 $11.00 $12.00 $13.00 $14.00 $15.00 $16.00 $17.00 $18.00 $19.00 $20.00 Rollover Equity Shares (3) 38.312 38.312 38.312 38.312 38.312 38.312 38.312 38.312 38.312 38.312 38.312 Seller Earnout Equity Shares – – – – – 4.500 4.500 4.500 4.500 4.500 9.000 Non - Redeeming SHs and PIPE 4.490 4.490 4.490 4.490 4.490 4.490 4.490 4.490 4.490 4.490 4.490 Addt'l Shares to Non - Redeeming SHs and PIPE (4) 1.888 1.888 1.888 1.888 1.888 1.888 1.888 1.888 1.888 1.888 1.888 Public Warrants – – 0.898 2.488 3.850 5.031 6.064 6.976 7.784 7.784 7.784 SPAC Sponsor Promote Shares (5) 3.406 3.406 3.406 3.406 3.406 3.406 3.406 3.406 3.406 3.406 3.406 Total Shares Outstanding 48.095 48.095 48.994 50.583 51.946 57.627 58.660 59.571 60.379 60.379 64.879 % Ownership Rollover Equity Shares 79.7% 79.7% 78.2% 75.7% 73.8% 66.5% 65.3% 64.3% 63.5% 63.5% 59.1% Seller Earnout Equity Shares – – – – – 7.8% 7.7% 7.6% 7.5% 7.5% 13.9% Seller Ownership 79.7% 79.7% 78.2% 75.7% 73.8% 74.3% 73.0% 71.9% 70.9% 70.9% 72.9% Non - Redeeming SHs and PIPE 9.3% 9.3% 9.2% 8.9% 8.6% 7.8% 7.7% 7.5% 7.4% 7.4% 6.9% Addt'l Shares to Non - Redeeming SHs and PIPE 3.9% 3.9% 3.9% 3.7% 3.6% 3.3% 3.2% 3.2% 3.1% 3.1% 2.9% Public Warrants – – 1.8% 4.9% 7.4% 8.7% 10.3% 11.7% 12.9% 12.9% 12.0% Public Ownership 13.3% 13.3% 14.9% 17.5% 19.7% 19.8% 21.2% 22.4% 23.5% 23.5% 21.8% SPAC Sponsor Promote Shares 7.1% 7.1% 7.0% 6.7% 6.6% 5.9% 5.8% 5.7% 5.6% 5.6% 5.2% Sponsor Ownership 7.1% 7.1% 7.0% 6.7% 6.6% 5.9% 5.8% 5.7% 5.6% 5.6% 5.2% Total Ownership 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% Illustrative Transaction Summary – Analysis at Various Prices (At Minimum Cash) (1)(2) © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL 41 (1) (2) As per the Business Combination Agreement, Allurion to raise a $15 million bridge financing on or prior to April 30, 2023. Share count includes 38.312 million Allurion rollover equity shares, 6.378 million Non - Redeeming Shareholders and PIPE shares, and 3.406 million sponsor shares. Allurion rollover equity shares includes 0.500 million shares to be issued to senior secured lender and royalty debt provider at closing. Allurion rollover shares subject to being reduced by up to an additional 1.500 million shares based on the net cash available at closing, and such shares would instead be issued to the senior secured lender and royalty debt provider. Includes impact of 21.563 million public warrants. Assumes successful consent solicitation removing warrant anti - dilution protection, resulting in a 1:1 ratio for outstanding public warrants and a 1.4:1 ratio for outstanding Class A common stock. Includes 0.500 million shares issuable to senior secured lender and royalty debt provider at transaction close. CPUH investors that do not elect to redeem their shares will receive an additional 0.420 incremental shares for each share held. Includes 0.120 million Class B shares held by CPUH directors. Includes estimated impact of 0.320 million shares from Sponsor loan conversion and 0.420 additional shares per sponsor share (excluding director shares and shares from sponsor loan conversion) held. (3) (4) (5)

 

 

Disclaimer About This Presentation This confidential investor presentation (together with the oral statements made in connection herewith, the “Presentation”) contains proprietary and confidential information of Allurion Technologies Holdings, Inc. (“Pubco”), Compute Health Acquisition Corp. (“Compute Health”) and Allurion Technologies, Inc. (together with its subsidiaries, the “Company”), and the entire Presentation should be considered “Confidential Information.” The recipient of this Presentation shall keep this Presentation and its contents confidential, shall not use this Presentation and its contents for any purpose other than as expressly authorized by Pubco, the Company and Compute Health and shall be required to return or destroy all copies of this Presentation or portions thereof in its possession promptly following request for the return or destruction of such copies. The recipient agrees not to distribute, reproduce, disclose or use such information in any way detrimental to Pubco, Compute Health or the Company. By accepting delivery of this Presentation, the recipient is deemed to agree to the foregoing confidentiality requirements. United States securities laws restrict persons with material non - public information about a company obtained directly from that company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities on the basis of such information. This Presentation is being provided for informational purposes only and has been prepared to assist interested parties solely in their capacities as potential investors and is provided solely for the purpose of allowing interested parties to make their own evaluation with respect to the proposed business combination between Pubco, the Company and Compute Health and the potential investment in connection therewith (the “Business Combination”). The information contained herein does not purport to be all - inclusive and none of Pubco, Compute Health, the Company or their respective affiliates nor any of their control persons, officers, directors, employees or representatives makes any representation or warranty, express or implied, as to the accuracy, completeness or reliability of the information contained in this Presentation, and, by accepting this Presentation, you are confirming that you are not relying upon the information contained herein to make any decision. The contents herein are not to be construed as legal, business or tax advice, and the recipient should consult his, her or its own attorney, business advisor and tax advisor as to legal, business and tax advice. This Presentation shall not constitute (i) a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combination or (ii) an offer to sell, a solicitation of an offer to buy, or a recommendation to purchase any security of Pubco, Compute Health, the Company, or any of their respective affiliates. No offering of securities will be made except by means of a registration statement (including a prospectus meeting the requirements of section 10 of the Securities Act of 1933, as amended (the “Act”)), filed with the U.S. Securities and Exchange Commission (the “SEC”) or a transaction structured to be exempt from registration. No such registration statement has been filed or become effective as of the date of this Presentation. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC, ANY STATE SECURITIES COMMISSION OR OTHER UNITED STATES OR FOREIGN REGULATORY AUTHORITY, NOR HAVE ANY OF THESE AUTHORITIES PASSED UPON THE MERITS OF THE OFFERING OR DETERMINED THAT THIS PRESENTATION IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. Forward - Looking Statements Certain statements, estimates, targets and projections in this Presentation may be considered “forward - looking statements” within the meaning of the “safe harbor” provisions of the U.S. Private Securities Litigation Reform Act of 1995. Actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward - looking statements as predictions of future events or future performance of Compute Health or the Company. For example, projections of future revenue, costs of goods sold, gross profit, sales and marketing and general and administrative expenses and EBIT; anticipated growth in the industry in which the Company operates and anticipated growth in demand for the Company’s products; the launch of the Company’s products in new markets, regulatory approvals for its products, including any expanded label uses; the total addressable markets for the Company’s products; new product developments and offerings, including the Company’s digital health platform; the pro forma enterprise value of the combined entity after the Business Combination; use of proceeds from the Business Combination; the level of redemptions and cash available from Compute Health’s trust following the Business Combination; the satisfaction of closing conditions to the Business Combination; and the timing of the completion of the Business Combination are forward - looking statements. In some cases, you can identify forward - looking statements through the use of words or phrases such as “pro forma”, “may”, “should”, “could”, “might”, “possible”, “project”, “target”, “strive”, “budget”, “forecast”, “intend”, “estimate”, “anticipate”, “predict”, “potential”, “believe”, “will likely result”, “expect”, “continue”, “will”, “anticipate”, “seek”, “estimate”, “intend”, “plan”, “projection”, “would” and “outlook”, or the negative version of those words or phrases or other comparable words or phrases of a future or forward-looking nature. These forward - looking statements are not historical facts and are based upon estimates and assumptions that, while considered reasonable by Pubco and its management, Compute Health and its management, and the Company and its management, as the case may be, are inherently uncertain. Such forward - looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward - looking statements. Such factors include, but are not limited to various factors beyond management’s control, including: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of negotiations and any subsequent definitive agreements with respect to the Business Combination; (2) the outcome of any legal proceedings that may be instituted against Pubco, Compute Health, the Company, the combined company or others following the announcement of the Business Combination and any definitive agreements with respect thereto; (3) the inability to complete the Business Combination due to the failure to obtain approval of the stockholders of Compute Health or the Company, to obtain financing to complete the Business Combination or to satisfy other conditions to closing; (4) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the Business Combination; (5) the ability to meet stock exchange listing standards following the consummation of the Business Combination; (6) the risk that the Business Combination disrupts current plans and operations of Compute Health or the Company as a result of the announcement and consummation of the Business Combination; (7) the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers, distributors and retain its management and key employees; (8) costs related to the Business Combination; (9) changes in applicable laws or regulations and delays in obtaining, adverse conditions contained in, or the inability to obtain regulatory approvals required to complete the Business Combination; (10) the evolution of markets in which the Company operates; (11) the possibility that the Company or the combined company may be adversely affected by other economic, business, regulatory, and/or competitive factors; (12) the Company’s ability to continuously and rapidly innovate, develop and market new products; (13) risks related to future market adoption of the Company’s offerings; (14) sanctions against Russia, reductions in consumer confidence, heightened inflation, production disruptions in Europe, cyber disruptions or attacks, higher natural gas costs, higher manufacturing costs and higher supply chain costs; (15) the Company’s estimates of expenses and profitability and underlying assumptions with respect to stockholder redemptions; (16) the evolution of the markets in which the Company competes; (17) the ability of the Company to implement its strategic initiatives and continue to innovate its existing products and services; (18) the ability of the Company to defend its intellectual property and satisfy regulatory requirements; (19) the impact of the COVID - 19 pandemic on the Company’s business; and (20) other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward - Looking Statements” in Compute Health’s final prospectus dated February 4, 2021 relating to its initial public offering and other risks and uncertainties indicated from the time to time in the definitive proxy statement to be delivered to Compute Health’s stockholders and related registration statement of Pubco on Form S - 4, including those set forth under “Risk Factors” therein, or as otherwise indicated from time to time in other documents filed or to be filed with the SEC by Pubco or Compute Health. All information set forth herein speaks as of the date hereof unless otherwise indicated and Pubco, Compute Health, the Company and any other parties referenced in this disclaimer and in this presentation disclaim any intention or obligation to update any forward - looking statements or other information as a result of events occurring after this Presentation. Projected and estimated numbers are used for illustrative purposes only, are not forecasts and may not, and are likely not to, reflect actual results. © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL

 

 

Disclaimer (cont’d) Financial Data and Use of Projections The financial information and operating metrics contained in this Presentation are unaudited and do not conform to Regulation S - X. Such information and data may not be included in, may be adjusted in or may be presented differently in, the registration statement to be filed by Pubco relating to the Business Combination, the proxy statement of Compute Health contained therein, the prospectus contained therein, or any other proxy statement, registration statement or prospectus to be filed by Pubco or Compute Health with the SEC. Some of the financial information and data contained in this Presentation, such as EBIT have not been prepared in accordance with United States generally accepted accounting principles (“GAAP”). Pubco, the Company and Compute Health believe these non - GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to the Company’s financial condition and results of operations. Pubco, Compute Health and the Company believe that the use of these non - GAAP financial measures provides an additional tool for investors to use in evaluating projected operating results and trends in and in comparing the Company’s financial measures with other similar companies, many of which present similar non - GAAP financial measures to investors. Management does not consider these non - GAAP measures in isolation or as an alternative to financial measures determined in accordance with GAAP. The principal limitation of these non - GAAP financial measures is that they exclude significant expenses and income that are required by GAAP to be recorded in the Company’s financial statements. Given the inherent uncertainty regarding projections, projected non - GAAP measures have not been reconciled back to the nearest GAAP measure. In addition, they are subject to inherent limitations as they reflect the exercise of judgments by management about which expense and income are excluded or included in determining these non - GAAP financial measures. You should review Pubco’s, Compute Health’s and the Company’s audited financial statements, which will be included in the registration statement relating to the Business Combination. This Presentation contains projected financial information for the Company with respect to certain financial results for the Company. None of Pubco’s, Compute Health’s or the Company’s independent auditors have audited, studied, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, they did not express an opinion or provide any other form of assurance with respect thereto for the purpose of this Presentation. These projections are forward - looking statements for illustrative purposes only and should not be relied upon as being indicative of future results. The inclusion of financial projections in this Presentation is not an admission or representation by any person that such information is material. The assumptions and estimates underlying such projections are inherently uncertain and subject to a wide variety of significant business, economic, competitive and other risks and uncertainties that could cause actual results to differ materially from those contained in the prospective financial information. See “Forward - Looking Statements” above. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of the Company or that actual results will not differ materially from those presented in the prospective financial information. Actual results may differ materially from the results contemplated by the projections contained in this Presentation, and the inclusion of such information in this Presentation, should not be regarded as a representation by any person that the results reflected in such projections will be achieved. Since the financial projections cover multiple years, such projections by their nature become less reliable with each successive year. Industry and Market Data Unless otherwise indicated, information contained in this Presentation concerning the Company’s industry, competitive position and the markets in which it operates is based on information from independent industry and research organizations, other third - party sources and management estimates. Management estimates are derived from publicly available information released by independent industry analysts and other third-party sources, as well as data from the Company’s internal research, and are based on assumptions made by the Company upon reviewing such data, and the Company’s experience in, and knowledge of, such industry and markets, which the Company believes to be reasonable. While the Company believes that such third party information is reliable, the Company has not independently verified, and makes no representation as to the accuracy or completeness of, such third party information. In addition, projections, assumptions and estimates of the future performance of the industry in which the Company operates and the Company’s future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described above. These and other factors could cause results to differ materially from those expressed in the estimates made by independent parties and by the Company. Trademarks The trademarks, service marks, trade names and copyrights included herein are the property of the owners thereof and are used for reference purposes only. Such use should not be construed as an endorsement of the products or services of the Company. Additional Information About The Business Combination And Where To Find It In connection with the proposed Business Combination, Compute Health will file a preliminary proxy statement and other materials with the SEC and will mail a definitive proxy statement, any amendments thereto, and other relevant documents to its stockholders. Investors and security holders of Compute Health are advised to read, when available, the preliminary proxy statement, and amendments thereto, and the definitive proxy statement in connection with Compute Health’s solicitation of proxies for its stockholders’ meeting to be held to approve the Business Combination because the proxy statement will contain important information about the business combination and the parties to the Business Combination. The definitive proxy statement will be mailed to stockholders of Compute Health as of a record date to be established for voting on the Business Combination. Stockholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Business Combination and other documents filed with the SEC by Compute Health, without charge, at the SEC’s website located at www.sec.gov. Participants in the Solicitation Pubco, Compute Health, the Company, Compute Health Sponsor LLC and certain of their respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitations of proxies from Compute Health’s stockholders in connection with the Business Combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of Compute Health’s stockholders in connection with the Business Combination will be set forth in Compute Health’s proxy statement when it is filed with the SEC. You can find more information about Compute Health’s directors and executive officers in Compute Health’s final prospectus dated February 4, 2021 and Annual Report on Form 10 - K for the fiscal year ended December 31, 2021, filed with the SEC on March 31, 2022. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in Compute Health’s proxy statement when it becomes available. Stockholders, potential investors and other interested persons should read the proxy statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the sources indicated above. © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL

 

 

Certain factors may have a material adverse effect on our business, financial condition and results of operations. The risks and uncertainties described below are not the only ones we face. Additional risks that we are unaware of, or that we currently believe are not material, may also become important factors that materially adversely affect us. If any of the following risks actually occurs, our business, financial condition, results of operations, and future prospects could be materially and adversely affected. In that event, the trading price of the combined entity’s common stock following the Business Combination could decline, and you could lose all or a part of your investment. References to “we”, the “Company” or “Allurion” are to Allurion Technologies, Inc. and its affiliates. • There is no guarantee that FDA or non - U.S. regulatory agencies will grant approval for our current or future products, and failure to obtain regulatory approvals in the U.S. and other international jurisdictions, or revocation of approvals in those jurisdictions, will prevent us from marketing our products. • Even if clinical trials demonstrate acceptable safety and efficacy for our products in some patient populations, FDA or similar regulatory authorities outside the U.S. may not approve the marketing of our products, which could have a material adverse effect on our business, financial condition, results of operations and growth prospects. • Our Allurion Balloon is not currently approved for commercial sale in the U.S. Obtaining such approval is costly and time consuming, and we may not obtain the regulatory approval required to sell our Allurion Balloon in the U.S. • The regulatory approval process is expensive, time consuming and uncertain, and may prevent us from obtaining approvals for the commercialization of Allurion Balloons or our planned products. • Because we are developing gastric balloons for weight loss, there is increased risk that FDA, the EMA or other regulatory authorities may not consider the endpoints of our clinical trials to provide clinically meaningful results and that these results may be difficult to analyze. • The effectiveness and safety of our Allurion Balloon system depends critically on our ability to educate physicians on its safe and proper use. If we are unable to do so, we may not achieve our expected growth and may be subject to risks and liabilities. • The use, misuse or off - label use of our products may result in injuries that lead to product liability suits, which could be expensive, divert management’s attention and harm our reputation and business. We may not be able to maintain adequate product liability insurance. • If patients using our products experience adverse events or other undesirable side effects, regulatory authorities could withdraw or modify our commercial approvals, which would adversely affect our reputation and commercial prospects and/or result in other significant negative consequences. • The failure of our Allurion Balloon program to achieve and maintain market acceptance could result in us achieving sales below our expectations, which would cause our business, financial condition and results of operation to be materially and adversely affected. • We do not expect that physicians or patients will receive third - party reimbursement for treatment with our products. As a result, we expect that our success will depend on the ability and willingness of physicians to adopt self - pay practice management infrastructure and of patients to pay out - of - pocket for treatment with our products. • The medical device industry, and the market for weight loss and obesity in particular, is highly competitive. If our competitors are able to develop and market products that are safer, more effective, easier to use or more readily adopted by patients and physicians, our commercial opportunities will be reduced or eliminated. • We expect to incur losses for the foreseeable future, and our ability to achieve and maintain profitability depends on the commercial success of our Allurion Balloon, and we expect our revenues to continue to be driven primarily by sales of our Allurion Balloon. • We have incurred net operating losses in the past and expect to incur net operating losses for the foreseeable future. • We have a limited operating history and may face difficulties encountered by companies early in their commercialization in competitive and rapidly evolving markets. Risk Factors © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL

 

 

Risk Factors (cont’d) © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL • We have a significant amount of debt, which may affect our ability to operate our business and secure additional financing in the future. • From time to time, we engage outside parties to perform services related to certain of our clinical studies and trials, and any failure of those parties to fulfill their obligations could increase costs and our liability, and cause delays. • We rely on the timely supply of components and parts and could suffer if suppliers fail to meet their delivery obligations, raise prices or cease to supply us with components or parts. • We depend on a limited number of single source suppliers to manufacture our components, sub - assemblies and materials, which makes us vulnerable to supply shortages and price fluctuations. • The failure of third parties to meet their contractual, regulatory, and other obligations could adversely affect our business. • A substantial proportion of our sales are through exclusive distributors, and we do not have direct control over the efforts these distributors may use to sell our products. If our relationships with these third - party distributors deteriorate, or if these third - party distributors fail to sell our products or engage in activities that harm our reputation, or fail to adhere to medical device regulations, our financial results may be negatively affected. • If we are not able to obtain and maintain intellectual property protection for our products and technologies, or if the scope of our patents is not sufficiently broad, we may not be able to effectively maintain our market leading position. • We may not be able to protect or enforce our intellectual property rights throughout the world. • If we are unable to protect the confidentiality of our trade secrets, the value of our technology could be materially adversely affected, harming our business and competitive position. • We may be involved in legal proceedings to protect or enforce our intellectual property, which could be expensive, time - consuming, and unsuccessful. • We depend on our senior management team and the loss of one or more key employees or an inability to attract and retain highly skilled employees could harm our business. • Commercial success of Allurion Balloon Programs in the U.S. or elsewhere depends on our ability to accurately forecast customer demand and manufacture sufficient quantities of product that patients and physicians request, and to manage inventory effectively and the failure to do so could have a material adverse effect on our business, financial condition, results of operations and growth prospects. • Our business depends on maintaining our brand and ongoing customer demand for our products and services, and a significant reduction in sentiment or demand could affect our results of operations. • Health care reform measures could hinder or prevent our planned products’ commercial success. • If we fail to comply with health care regulations, we could face substantial penalties and our business, operations and financial condition could be adversely affected. • We may be subject to substantial warranty or product liability claims or other litigation in the ordinary course of business that may adversely affect our business, financial condition and operating results. • Continued international expansion of our business will expose us to business, regulatory, political, operational, financial and economic risks associated with doing business internationally. • Sanctions against Russia, reductions in consumer confidence, heightened inflation, production disruptions in Europe, cyber disruptions or attacks, higher natural gas costs, higher manufacturing costs and higher supply chain costs may affect our business. • There are no assurances that the collaboration agreement with Medtronic will be signed and that the parties will achieve the expected benefits, incremental revenue and opportunities from such agreement.

 

 

Transaction Risks © 2023 ALLURION TECHNOLOGIES - PROPRIETARY INFORMATION – CONFIDENTIAL • The ability of Compute Health’s public shareholders to exercise redemption rights may adversely affect our liquidity and capital resources. • The Company and Compute Health will be subject to business uncertainties and contractual restrictions while the business combination is pending. • Each party will incur substantial transaction costs in connection with the business combination. • Following the completion of the business combination, the trading price of our common stock could decline if securities analysts do not publish research about us or if securities analysts or other third parties publish unfavorable research about us. • The price of our common stock may be volatile and fluctuate substantially, which could cause you to lose all or part of your investment. • We will need to improve our operational and financial systems to support our expected growth, increasingly complex business arrangements, and rules governing revenue and expense recognition and any inability to do so will adversely affect our billing and reporting. • If we fail to implement effective internal controls over financial reporting, we may be unable to accurately or timely report our financial condition or results of operations, which may adversely affect our business. • We will incur increased costs as a result of operating as a public company, and our management will be required to devote substantial time to new compliance initiatives and corporate governance policies. • We will be an “emerging growth company,” and our reduced SEC reporting requirements may make our shares less attractive to investors. • We may fail to meet Nasdaq’s continued listing requirements, which could result in a delisting of our shares. • The private placement will only be consummated if the business combination is closed, and the closing of the business combination will be subject to a number of closing conditions, some of which will be outside of our control, including approval of the business combination by the stockholders of Compute Health.