Exhibit 2.1
Execution
Version
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
LF CAPITAL ACQUISITION CORP.,
LFCA MERGER SUB, INC.,
LANDSEA HOMES INCORPORATED
and
LANDSEA HOLDINGS CORPORATION
DATED AS OF AUGUST 31, 2020
TABLE OF CONTENTS
EXHIBITS
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Exhibit A
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Form of Parent A&R Charter
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Exhibit B
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Form of Parent A&R Bylaws
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Exhibit C
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Form of Stockholders’ Agreement
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Exhibit D
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Form of Investor Representation Letter
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Exhibit E
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Form of Seller Lockup Agreement
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Exhibit F
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Form of Sponsor Lockup Agreement
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Exhibit G
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Form of License Agreement
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SCHEDULES
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF
MERGER is made and entered into as of August 31, 2020, by and among LF Capital Acquisition Corp., a Delaware corporation (“Parent”),
LFCA Merger Sub, Inc., a Delaware corporation and a direct, wholly-owned subsidiary of Parent (“Merger Sub”),
and Landsea Homes Incorporated, a Delaware corporation (the “Company”), and Landsea Holdings Corporation, a
Delaware corporation (the “Seller”). Each of the Company, Parent, Merger Sub and the Seller shall individually
be referred to herein as a “Party” and, collectively, the “Parties”. The term “Agreement”
as used herein refers to this Agreement and Plan of Merger, as the same may be amended from time to time, and all schedules, exhibits
and annexes hereto (including the Disclosure Schedules, as defined herein). Defined terms used in this Agreement are listed alphabetically
in Schedule A, together with the section and, if applicable, subsection in which the definition of each such term is
located.
RECITALS
WHEREAS, Parent is a blank
check company incorporated in Delaware for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or similar business combination with one or more businesses (collectively, a “Business Combination”).
WHEREAS, Parent desires to
acquire one hundred percent (100%) of the issued and outstanding shares of capital stock of the Company on the terms and subject
to the conditions set forth herein.
WHEREAS, Level Field
Capital, LLC, a Delaware limited liability company (the “Sponsor”), has delivered to the Parent, the
Seller and the Company an executed Sponsor Transfer, Waiver, Forfeiture and Deferral Agreement, dated as of the date hereof
(the “Sponsor Surrender Agreement”), whereby in connection with the consummation of the transactions
contemplated hereunder, Sponsor has agreed to (i) immediately prior to Closing, transfer to Parent for forfeiture a certain
number of Parent Class B Stock (the “Surrendered Shares”) and Private Placement Warrants (the
“Surrendered Warrants”), (ii) defer a certain number of shares of Parent Class A Stock (as converted
on a one-to-one basis from Parent Class B Stock at the Closing), (iii) transfer to the Seller a certain number of (x) Private
Placement Warrants immediately prior to Closing and (y) Parent Class A Stock immediately after the Closing, (iv) cancel
that certain $1,000,000 working capital loan to the Parent pursuant to that certain Promissory Note entered into with the
Parent, dated July 16, 2020; and (v) waive its conversion rights pursuant to that certain Convertible Note entered into with
the Parent, dated as of March 4, 2019, as amended, in each case on terms and subject to the conditions set forth therein.
WHEREAS, each of the Sponsor,
certain funds and accounts managed by Subsidiaries of BlackRock, Inc., a Delaware corporation (the “BlackRock Holders”),
and the other holders of Parent Class B Stock, have delivered to the Seller and the Company executed certain waiver agreements,
whereby in connection with the consummation of the Transactions, such holders of Parent Class B Stock have agreed to waive certain
of their anti-dilution, conversion and/or redemption rights (each a “Waiver Agreement”).
WHEREAS, the Parent, the
Sponsor and the Seller have entered into an indemnification agreement, whereby Parent has agreed (i) that it may not amend, waive,
terminate or otherwise modify the Waiver Agreement with the BlackRock Holders without the prior written consent of the Seller and
(ii) to enforce the terms of the Waiver Agreement, and Sponsor has agreed to (x) indemnify Parent and the Seller for all reasonably
documented out-of-pocket costs incurred with respect to enforcing the Indemnification Agreement and the Waiver Agreement and (y)
forfeit such amounts of Parent Class A Stock equal to such number of shares of Parent Class B Stock of the BlackRock Holders converted
into Parent Class A Stock at or as a result of the Closing less the number of Parent Class B Stock of the BlackRock
Holders outstanding immediately prior to the Closing.
WHEREAS, the Parent has entered
into those certain Forward Purchase and Subscription Agreements (the “Forward Purchase Agreements”) with the respective
subscribers party thereto substantially concurrently with the execution hereof.
WHEREAS, the Seller has entered
into those certain employment agreements with each of John Ho, Franco Tenerelli, and Michael Forsum, dated as of the date hereof
(the “Employment Agreements”), and it is the intent of the Parent and Seller that, at the Closing, Seller
shall assign and the Company shall assume such Employment Agreements.
WHEREAS, upon the terms and
subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”)
and other applicable Law (collectively, as applicable based on context, the “Applicable Law”), the Parties intend
to enter into a Business Combination transaction by which Merger Sub will merge with and into the Company (the “Merger”),
with the Company being the surviving entity of the Merger (the Company, in its capacity as the surviving corporation of the Merger,
is sometimes referred to as the “Surviving Corporation”).
WHEREAS, for U.S. federal
income tax purposes, each of the Parties intends that the Merger will qualify as a “reorganization” under the provisions
within the meaning of Section 368(a) of the Code, and that this Agreement shall constitute be, and hereby is, adopted as a “plan
of reorganization” within the meaning for the purposes of Section 368 of the Code and Treasury Regulations Section 1.368-2(g).
WHEREAS, the board of directors
of the Company has unanimously: (a) determined that it is in the best interests of the Company and the stockholders of the
Company, and declared it advisable, to enter into this Agreement providing for the Merger in accordance with the DGCL; (b) approved
this Agreement and the Transactions, including the Merger in accordance with the DGCL on the terms and subject to the conditions
of this Agreement; and (c) adopted a resolution recommending the plan of merger set forth in this Agreement be adopted by the stockholders
of the Company.
WHEREAS, all of the stockholders
of the Company will approve and adopt this Agreement, the Merger and the other Transactions in accordance with Section 251 of the
DGCL (the “Company Stockholder Approval”).
WHEREAS, the board of directors
of Parent has unanimously: (a) determined that it is in the best interests of Parent and the stockholders of Parent, and declared
it advisable, to enter into this Agreement providing for the Merger in accordance with the DGCL; (b) approved this Agreement and
the Transactions, including the Merger in accordance with the DGCL on the terms and subject to the conditions of this Agreement;
and (c) adopted a resolution recommending the plan of merger set forth in this Agreement be adopted by the stockholders of Parent
(the “Parent Recommendation”).
WHEREAS, the Sponsor and
certain other holders of Parent Class B shares have delivered to the Company an executed that certain Founders’ Voting
and Support Agreement, dated as of the date hereof, whereby each of the Sponsor and the other Parent Class B shareholders, among
other things, have agreed to vote their shares of Parent Class A Stock, shares of Parent Class B Stock and Warrants in favor of
the Parent Stockholder Matters.
WHEREAS, prior to the Closing,
Parent shall: (a) subject to obtaining the approval of the Parent Stockholder Matters, adopt the Second Amended and Restated Certificate
of Incorporation of Parent (the “Parent A&R Charter”) in the form attached hereto as Exhibit A; and
(b) amend and restate the existing bylaws of Parent (the “Parent A&R Bylaws”) in the form attached hereto
as Exhibit B.
WHEREAS, in connection with
the consummation of the Merger, Parent and the Seller will enter into a Stockholders’ Agreement (the “Stockholders’
Agreement”) in the form attached hereto as Exhibit C.
WHEREAS, in connection with
the consummation of the Merger, the Seller will enter into an Investor Representation Letter (the “Investor Representation
Letter”) in the form attached hereto as Exhibit D.
WHEREAS, in connection with
the Closing, Parent and the Seller will enter into a Seller Lockup Agreement (the “Seller Lockup Agreement”)
in the form attached hereto as Exhibit E.
WHEREAS, in connection with
the Closing, Parent and the Sponsor will enter into a Sponsor Lockup Agreement (the “Sponsor Lockup Agreement”)
in the form attached hereto as Exhibit F.
WHEREAS, in connection with
the Closing, Parent and an Affiliate of the Seller will enter into a license agreement providing for the use of the “Landsea”
trademark (the “License Agreement”) in the form attached hereto as Exhibit G.
NOW, THEREFORE, in consideration
of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
Article
I
THE CLOSING TRANSACTIONS
1.1 Closing.
Unless this Agreement shall have been terminated pursuant to Section 9.1, the consummation of the Transactions (the
“Closing”), other than the filing of the Certificates of Merger (as defined below), shall take place remotely
at a time and date to be specified in writing by the Parties, which shall be no later than the third Business Day after the satisfaction
or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other time, date and location as the
Parties agree in writing (the date on which the Closing occurs, the “Closing Date”). The Parties agree that
the Closing signatures may be transmitted by facsimile or by email pdf files.
1.2 Parent
Financing Certificate. Not more than two (2) Business Days prior to the Closing, Parent shall deliver to the Seller written
notice (the “Parent Financing Certificate”) setting forth: (a) the aggregate amount of cash proceeds that will
be required to satisfy any exercise of the Parent Stockholder Redemptions; (b) the amount of Parent Cash and Parent Transaction
Costs as of the Closing; and (c) the number of shares of Parent Class A Stock to be outstanding as of the Closing after giving
effect to the Parent Stockholder Redemptions.
1.3 Closing
Documents
(a) At
the Closing, Parent or Merger Sub shall, as applicable, deliver to the Seller:
(i) a
certified copy of the Parent A&R Charter and the Parent A&R Bylaws;
(ii) copies
of resolutions and actions taken by Parent’s and Merger Sub’s board of directors and stockholders in connection with
the approval of this Agreement and the Transactions;
(iii) a
copy of the Stockholders’ Agreement, duly executed by Parent;
(iv) a
copy of the Seller Lockup Agreement, duly executed by Parent;
(v) a
copy of the Sponsor Lockup Agreement, duly executed by Parent and Sponsor;
(vi) a
copy of the License Agreement, duly executed by Parent;
(vii) a
duly executed hard-copy original stock certificate of the Company, representing one hundred percent (100%) of the issued and outstanding
shares of capital stock of the Company, in the name of Parent; and
(viii) (A)
all other documents, instruments or certificates required to be delivered by Parent at or prior to the Closing pursuant to Section
8.2; and (B) such other documents or certificates as shall reasonably be required by the Seller and its counsel in order to
consummate the Transactions.
(b) At
the Closing, the Company or the Seller, as applicable, shall deliver to Parent:
(i) a
copy of the Certificate of Merger, duly executed by the Company;
(ii) a
copy of the Investor Representation Letter, duly executed by the Seller;
(iii) a
copy of the Stockholders’ Agreement, duly executed by the Seller;
(iv) a
copy of the Seller Lockup Agreement, duly executed by the Seller;
(v) a
copy of the License Agreement, duly executed by an Affiliate of the Seller;
(vi) copies
of resolutions and actions taken by the Company’s board of directors and the Company Stockholders in connection with the
approval of this Agreement and the Transactions;
(vii) a
properly executed IRS Form W-9 from the Seller and the Company;; and
(viii) (A)
all other documents, instruments or certificates required to be delivered by the Company at or prior to the Closing pursuant to
Section 8.3; and (B) such other documents or certificates as shall reasonably be required by Parent and its counsel in order
to consummate the Transactions.
1.4 Closing
Transactions.
(a) At
the Closing and on the Closing Date, the Parties shall cause the consummation of the following transactions in the following order,
upon the terms and subject to the conditions of this Agreement:
(i) Parent
shall make, or cause to be made, any payments required to be made by Parent in connection with the Parent Stockholder Redemption.
(ii) Parent
shall pay, or cause to be paid, all Parent Transaction Costs to the applicable payees, to the extent not paid prior to the Closing.
(iii) The
certificate of merger with respect to the Merger shall be prepared and executed in accordance with the relevant provisions of the
DGCL (the “Certificate of Merger”) and filed with the Secretary of State of the State of Delaware.
(iv) The
Parent A&R Charter shall be executed and filed with the Secretary of State of the State of Delaware.
(v) Parent
shall issue to the Seller the Closing Number of Securities.
(vi) Parent
shall (on behalf of the Company) pay, or, cause to be paid, all Company Transaction Costs, to the extent not paid by the Company
prior to the Closing; provided that the Company Transaction Costs may be paid promptly after the Closing Date as necessary.
Article
II
THE MERGER
2.1 Effective
Time. Subject to the terms and subject to the conditions of this Agreement, on the Closing Date the Company and Merger Sub
shall cause the Merger to be consummated by filing the Certificate of Merger with the Secretary of State of the State of Delaware,
in accordance with the applicable provisions of the DGCL (the time of such filing, or such later time as may be agreed in writing
by the Company and Parent and specified in the Certificate Merger, being the “Effective Time”).
2.2 The
Merger. At the Effective Time, upon the terms and subject to the conditions of this Agreement and in accordance with the applicable
provisions of the DGCL, Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged with
and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue
as the Surviving Corporation after the Merger and as a direct, wholly-owned subsidiary of Parent.
2.3 Effect
of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger
and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger
Sub and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties
and obligations of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements,
covenants, duties and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective
Time.
2.4 Governing
Documents. At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall be amended
to read the same as the certificate of incorporation and bylaws of the Company as in effect immediately prior to the Effective
Time, except that the name of the Surviving Corporation shall be “Landsea Homes Corporation”.
2.5 Directors
and Officers of the Surviving Corporation. The directors and officers of the Company shall become the directors and officers
of the Surviving Corporation.
2.6 Merger
Consideration.
(a) Not
less than five (5) Business Days prior to the anticipated Closing Date, the Company will deliver to Parent a certificate signed
by a duly authorized officer, solely in such capacity and not in its personal capacity (the “Company Closing Certificate”),
setting forth:
(i) the
Company’s good faith estimate of Company Transaction Costs that will be unpaid as of the Closing; and
(ii) the
Company’s good faith estimate of Indebtedness as of the Closing, including any Payoff Amount.
(b) The
Company Closing Certificate so delivered by the Company will confirm in writing that it has been prepared in good faith using the
latest available financial information and will include materials showing in reasonable detail the Company’s support and
computations for the amounts included in the Company Closing Certificate. Parent shall be entitled to review and make reasonable
comments on the matters and amounts set forth in the Company Closing Certificate so delivered by the Company pursuant to Section 2.6(a).
The Company will cooperate with Parent in the review of the Company Closing Certificate, including providing Parent and its Representatives
with reasonable access to the relevant books, records and finance employees of the Company. The Company will cooperate reasonably
with Parent to revise the Company Closing Certificate if necessary to reflect Parent’s reasonable comments. If the Company
Closing Certificate is so revised, such revised Company Closing Certificate, or if Parent had no such comments, then the initial
Company Closing Certificate shall be deemed to be the final “Company Closing Certificate,” in each case as approved
in writing by Parent (which approval shall not be unreasonably withheld, conditioned or delayed).
(c) Upon
the terms and subject to the conditions of this Agreement, the aggregate consideration to be paid to the Seller shall be an amount
equal to the Merger Consideration.
(d) The
Merger Consideration shall be paid to the Seller in the form of the Closing Number of Securities.
2.7 Effect
of the Merger on the Company Common Stock. Upon the terms and subject to the conditions of this Agreement, at the Effective
Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company, the Company Stockholders
or the holders of any of the securities of Parent, the following shall occur:
(a) Each
share of Company Common Stock (other than Excluded Shares) issued and outstanding immediately prior to the Effective Time will
be cancelled and automatically deemed for all purposes to represent the right to receive a portion of the Merger Consideration,
with the Seller being entitled to receive the Closing Number of Securities without interest, upon surrender of stock certificates
representing all of the Company Common Stock (each, a “Certificate”) and delivery of the other documents
required pursuant to Section 2.8. As of the Effective Time, the Seller shall cease to have any other rights in and to the
Company or the Surviving Corporation, and each Certificate relating to the ownership of shares of Company Common Stock (other than
Excluded Shares) shall thereafter represent only the right to receive the applicable portion of the Merger Consideration.
(b) No
fraction of a share of Parent Class A Stock will be issued by virtue of the Merger, and if the Seller otherwise would be entitled
to a fraction of a share of Parent Class A Stock (after aggregating all fractional shares of Parent Class A Stock that otherwise
would be received by the Seller), the Seller shall receive from Parent, in lieu of such fractional share: (i) one share of Parent
Class A Stock if the aggregate amount of fractional shares of Parent Class A Stock the Seller would otherwise be entitled to is
equal to or exceeds 0.50; or (ii) no shares of Parent Class A Stock if the aggregate amount of fractional shares of Parent Class
A Stock the Seller would otherwise be entitled to is less than 0.50.
(c) Each
issued and outstanding share of common stock of Merger Sub shall be converted into and become one validly issued, fully paid and
nonassessable share of common stock, par value $0.0001 per share, of the Surviving Corporation, which shall constitute the only
outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing
the common stock of Merger Sub shall be deemed for all purposes to represent the number of shares of common stock of the Surviving
Corporation into which they were converted in accordance with the immediately preceding sentence.
(d) Each
share of Company Common Stock held in the Company’s treasury or owned by Parent, Merger Sub or the Company immediately prior
to the Effective Time (each an “Excluded Share”), shall be cancelled and no consideration shall be paid or payable
with respect thereto.
(e) The
numbers of shares of Parent Class A Stock that the Seller is entitled to receive as a result of the Merger and as otherwise contemplated
by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock
dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Stock), extraordinary
cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect
to Parent Class A Stock occurring on or after the date hereof and prior to the Closing.
2.8 Surrender
of Company Certificates and Disbursement of Merger Consideration.
(a) Subject
to this Section 2.8, at the Effective Time, the Seller shall surrender each Certificate to the Parent and Parent shall deliver,
or cause to be delivered to the Seller the Closing Number of Securities. The Certificates so surrendered shall forthwith be cancelled.
Until so surrendered, each Certificate shall represent after the Effective Time for all purposes only the right to receive the
applicable portion of the Merger Consideration attributable to such Certificate. No interest will be paid or accrued on any amount
payable upon due surrender of the Certificates.
(b) In
the event of a transfer of ownership of shares of Company Common Stock that is not registered in the transfer records of the Company,
the applicable portion of the Merger Consideration to be delivered upon due surrender of the Certificate may be issued to such
transferee if the Certificate formerly representing such shares of Company Common Stock is presented to the Parent, accompanied
by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been
paid or are not applicable.
(c) From
and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common
Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificate is presented
to the Surviving Corporation or Parent for transfer, it shall be cancelled and deemed exchanged for (without interest and after
giving effect to any required Tax withholdings as provided in Section 2.11) the portion of the Merger Consideration represented
by such Certificate.
(d) Any
portion of the Merger Consideration that remains unclaimed for 180 days after the Effective Time shall be delivered to the Surviving
Corporation. Any holder of shares of Company Common Stock who has not theretofore complied with this Article II shall thereafter
look only to the Surviving Corporation for payment of their respective portion of the Merger Consideration (after giving effect
to any required Tax withholdings as provided in Section 2.11) upon due surrender of its Certificates (or affidavits of loss
in lieu of the Certificates as provided in Section 2.8(e)), without any interest thereon. Notwithstanding the foregoing,
none of the Surviving Corporation, Parent or any other Person shall be liable to any former holder of shares of Company Common
Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Law.
(e) In
the event any Certificate shall have been lost, stolen or destroyed: (i) upon the making of an affidavit of that fact by the
Person claiming such Certificate to be lost, stolen or destroyed; and (ii) if required by Parent, the posting by such Person of
a bond in customary amount and upon such terms as may be required by Parent as indemnity against any claim that may be made against
it, Merger Sub or the Surviving Corporation with respect to such Certificate, the Parent will issue the portion of the Merger Consideration
attributable to such Certificate (after giving effect to any required Tax withholdings as provided in Section 2.11).
2.9 Surrendered
Warrants and Surrendered Shares. Immediately prior to the Effective Time, Sponsor shall surrender and transfer to Parent, for
no consideration and as a contribution to the capital of Parent, the Surrendered Warrants and Surrendered Shares in accordance
with the Sponsor Surrender Agreement.
2.10 Tax
Treatment of the Merger.
(a) The
Parties shall not take or cause to be taken any action, or fail to take or cause to be taken any action, which action or failure
to act would reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a)
of the Code.
(b) For
U.S. federal income tax purposes (and for purposes of any applicable state or local Tax that follows the U.S. federal income tax
treatment), the Parties will prepare and file all Tax Returns consistent with the treatment of the Merger as a reorganization within
the meaning of Section 368(a) of the Code (or comparable provision of state and local Tax law) and will not take any inconsistent
position on any Tax Return, or during the course of any audit, litigation or other proceeding with respect to Taxes, except as
otherwise required by a determination within the meaning of Section 1313(a) of the Code.
2.11 Withholding
Taxes. Notwithstanding anything in this Agreement to the contrary, Parent, Merger Sub, the Company, the Surviving Corporation
and their Affiliates shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement,
any amount required to be deducted and withheld with respect to the making of such payment under Applicable Law. To the extent
that amounts are so withheld, 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. Any amounts so withheld shall be remitted to the applicable
Governmental Entity.
2.12 Taking
of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable
to carry out the purposes of this Agreement and to vest the Surviving Corporation following the Merger with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors
or members, as applicable, (or their designees) of the Company and Merger Sub are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent
with this Agreement.
Article
III
REPRESENTATIONS AND WARRANTIES
REGARDING THE COMPANY
Except as set forth in the
letter dated as of the date of this Agreement delivered by the Company to Parent and Merger Sub prior to or in connection with
the execution and delivery of this Agreement (the “Disclosure Schedules”), but subject to Section 11.16,
the Company hereby represents and warrants to Parent and Merger Sub as of the date hereof and as of the Closing Date as follows:
3.1 Organization
and Qualification. Each of the Company and the Company’s direct and indirect Subsidiaries (the “Company Subsidiaries”)
is duly organized, validly existing and in good standing in each jurisdiction where the character of the properties and assets
owned, leased or operated by it or the nature of its business makes such qualification necessary, as are listed on Schedule 3.1
of the Disclosure Schedules, and has all necessary power and authority to own, lease and operate its properties and to carry on
its business as it is now being conducted, except, in each case, for any such failures that would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect. True, correct and complete copies of the certificate of incorporation
and by-laws (or equivalent organizational documents) of the Company and Company Subsidiaries as currently in effect (collectively
referred to herein as “Charter Documents”), have been made available to Parent. The Company and the Company
Subsidiaries are not in violation of any of the provisions of their respective Charter Documents.
3.2 Capitalization.
(a) The
Company’s authorized and outstanding equity interests is as set forth in Schedule 3.2(a) of the Disclosure Schedules.
(b) No
securities or ownership interests are reserved for issuance upon the exercise of outstanding options, warrants or other rights
to purchase Company Common Stock. All outstanding shares of Company Common Stock have been duly authorized, validly issued, fully
paid and are non-assessable and are not subject to preemptive rights. Each share of Company Common Stock has been issued in compliance
in all material respects with: (i) Applicable Law; and (ii) the Company’s Charter Documents.
(c) Other
than as set forth on Schedule 3.2(c) of the Disclosure Schedules, there are no subscriptions, options, warrants, equity
securities, partnership interests or similar ownership interests, calls, rights (including preemptive rights), commitments or agreements
of any character to which the Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or cause
to be issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition
of, any ownership interests of the Company or obligating the Company to grant, extend, accelerate the vesting of or enter into
any such subscription, option, warrant, equity security, call, right, commitment or agreement. Other than as set forth on Schedule
3.2(c) of the Disclosure Schedules, there are no stock appreciation, phantom stock, stock-based performance unit, profit participation,
restricted stock, restricted stock unit or other equity-based compensation award or similar rights with respect to the Company.
(d) Except
as set forth in the Company’s Charter Documents and in connection with the Transactions, there are no registration rights,
and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings to which the Company
is a party or by which the Company is bound with respect to any ownership interests of the Company.
(e) Except
as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options
or other securities of the Company are issuable and no rights in connection with any shares, warrants, options or other securities
of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
3.3 Authority
Relative to this Agreement. The Company has all requisite power and authority to: (a) execute, deliver and perform this
Agreement and the other Transaction Agreements to which it is a party, and each ancillary document that the Company has executed
or delivered or is to execute or deliver pursuant to this Agreement; and (b) carry out its obligations hereunder and thereunder
and to consummate the Transactions (including the Merger). The execution, delivery and performance by the Company of this Agreement
and the other Transaction Agreements to which it is a party and the consummation by the Company of the Transactions (including
the Merger) have been duly and validly authorized by all requisite action on the part of the Company (including the approval by
its board of directors and, following receipt of the Company Stockholder Approval, the stockholders of the Company as required
by the DGCL), and no other proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the
Transactions. This Agreement and the other Transaction Agreements to which it is a party have been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and delivery thereof by the other Parties, constitute the
legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, except insofar
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally or by principles governing the availability of equitable remedies (collectively, “Enforceability Exceptions”).
3.4 No
Conflict; Required Filings and Consents.
(a) Except
as set forth in Schedule 3.4(a) of the Disclosure Schedules, the execution, delivery and performance by the Company of this
Agreement and the other Transaction Agreements to which it is a party do not, and the performance thereof by the Company shall
not: (i) conflict with or violate the Charter Documents; (ii) conflict with or violate any Applicable Law; (iii) result
in any breach of or constitute a default (with or without notice or lapse of time, or both) under, give to any third party any
rights of termination, amendment, acceleration or cancellation under, or result in the creation of a Lien (other than any Permitted
Lien) on any of the properties or assets of any of the Group Companies pursuant to, any Company Material Contracts, except, with
respect to clause (ii) or (iii) as would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect or that arise as a result of any facts or circumstances relating to Parent or any of its Affiliates.
(b) Except
as set forth in Schedule 3.4(b) of the Disclosure Schedules, the execution and delivery of this Agreement by the Company,
or the other Transaction Agreements to which it is a party, does not, and the performance of the Company’s obligations hereunder
and thereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental
Entity, except for: (i) the filing of the Certificate of Merger in accordance with the DGCL; (ii) applicable requirements,
if any, of the Securities Act, the Exchange Act or blue sky laws, and the rules and regulations thereunder, and appropriate documents
received from or filed with the relevant authorities of other jurisdictions in which the Company is licensed or qualified to do
business; (iii) the filing of any notifications required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the “HSR Act”), and the expiration of the required waiting period thereunder; (iv) the consents,
approvals, authorizations and permits described on Schedule 3.4(b) of the Disclosure Schedules; (v) where the
failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually
or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole; and (vi) as may be necessary
as a result of any facts or circumstances relating solely to Parent or any of its Affiliates.
3.5 Compliance;
Approvals. Each of the Group Companies is in (a) compliance with Applicable Law and (b) possession of all franchises, grants,
authorizations, licenses, permits, consents, certificates, approvals and orders from Governmental Entities (“Approvals”)
necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now
being conducted, except in each case, where such noncompliance or where the failure to have, or the failure to be in full force
and effect of, any Approvals, would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies,
taken as a whole.
3.6 Financial
Statements.
(a) Copies
of the audited consolidated and/or combined balance sheet of the Company and the Company Subsidiaries as at December 31, 2018 and
December 31, 2019, and the related audited consolidated and/or combined statements of income, retained earnings, stockholders’
equity and changes in financial position of the Company and the Company Subsidiaries, together with all related notes and schedules
thereto, accompanied by the reports thereon of the Company’s independent auditors (collectively referred to as the “GAAP
Financial Statements”) and the unaudited consolidated and/or combined balance sheet of the Company and the Company Subsidiaries
as at June 30, 2020 (the “Balance Sheet”), and the related consolidated and/or combined statements of income,
retained earnings, stockholders’ equity and changes in financial position of the Company and the Company Subsidiaries (collectively
referred to as the “Interim Financial Statements”), are attached hereto as Schedule 3.6(a) of the Disclosure
Schedules.
(b) Each
of the GAAP Financial Statements and the Interim Financial Statements (i) has been prepared based on the books and records of the
Company and the Company Subsidiaries (except as may be indicated in the notes thereto), (ii) has been prepared in accordance with
U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto) and (iii) fairly presents, in all material respects, the consolidated
financial position, results of operations and cash flows of the Company and the Company Subsidiaries as at the respective dates
thereof and for the respective periods indicated therein, except as otherwise noted therein and subject, in the case of the Interim
Financial Statements, to normal and recurring year-end adjustments and the absence of notes that will not, individually or in the
aggregate, be material.
(c) The
Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations and (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability.
3.7 No
Undisclosed Liabilities. There are no debts, liabilities or obligations, whether accrued or fixed, absolute or contingent,
matured or unmatured or determined or determinable, of the Company or any of the Company Subsidiaries of a nature required to be
reflected on a balance sheet prepared in accordance with GAAP, other than any such debts, liabilities or obligations (a) specifically
accrued or reserved against on the Interim Financial Statements, the GAAP Financial Statements or the notes thereto, (b) incurred
since the date of the Balance Sheet in the ordinary course of business of the Company and the Company Subsidiaries, or (c) that
would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole.
3.8 Absence
of Certain Changes or Events. Except as contemplated by this Agreement, since the date of the Balance Sheet, each of the Group
Companies has conducted its business in the ordinary course of business consistent with past practice and there has not been: (a) any
Company Material Adverse Effect; (b) any purchase, redemption or other acquisition by the Company of any of the shares of
Company Common Stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such Company
Common Stock or other securities; (c) any split, combination or reclassification of any of the shares of Company Common Stock;
(d) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent
changes in GAAP (or any interpretation thereof) or Applicable Law; (e) any change in the auditors of the Company; (f) any
issuance of shares of Company Common Stock; or (g) except as disclosed on Schedule 3.8 of the Disclosure Schedules, any
action taken or agreed upon by any of the Group Companies that would be prohibited by subsections (i), (ii), (iv), (v), (vi), (viii),
or (xii) of Section 5.1(a) if such action were taken on or after the date hereof without the consent of Parent.
3.9 Litigation.
Except as disclosed on Schedule 3.9 of the Disclosure Schedules, (a) there is no Legal Proceeding by or against any
Group Company pending, or to the Knowledge of the Company, threatened in writing that would otherwise, individually or in the aggregate,
reasonably be expected to, individually or in the aggregate, be material to the Group Companies, taken as a whole, or would affect
the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby, and (b)
no Group Company nor any material property or asset of any Group Company is subject to any continuing order of, consent decree,
settlement agreement or other similar written agreement with, or to the Knowledge of the Company, continuing investigation by any
Governmental Entity or any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.
3.10 Employee
Benefit Plans.
(a) Schedule 3.10(a)
of the Disclosure Schedules sets forth a true, correct and complete list of each material Employee Benefit Plan, excluding any
employment or consulting agreement or offer letter that either: (i) is terminable by the Company at will; or (ii) provides
for notice and/or garden leave obligations as required by Applicable Law, in each case, so long as such agreement or offer letter
does not provide for: (A) severance or similar obligations; (B) transaction bonuses or change in control or similar payments; or
(C) Tax gross-ups; provided that a form of such employment or consulting agreement or offer letter is listed and made available
to Parent and the individual agreements or offer letters do not deviate from such form in any material respect.
(b) With
respect to each material Employee Benefit Plan, the Company has made available to Parent a true, correct and complete copy of the
following documents, to the extent applicable: (i) all plan documents, including any related trust documents, insurance contracts
or other funding arrangements, third party administrative service contracts, and all amendments to the foregoing; (ii) for the
most recent two plan years: (A) the IRS Form 5500 and all schedules thereto; (B) audited financial statements; and (C) actuarial
or other valuation reports; (iii) the most recent IRS determination letter or opinion letter, as applicable; (iv) the most recent
summary plan descriptions, and (v) all correspondence with the Internal Revenue Service and the Department of Labor under any voluntary
compliance resolution system or delinquent flier programs.
(c) Each
Employee Benefit Plan has been established, maintained and administered in all material respects in accordance with its terms and
with all Applicable Law. No non-exempt “prohibited transaction” (within the meaning of Section 406 of ERISA and Section
4975 of the Code) has occurred or is reasonably expected to occur with respect to any Employee Benefit Plan.
(d) Each
Employee Benefit Plan intended to qualify under Section 401(a) of the Code is qualified and has received a determination letter
(or the prototype plan on which such Employee Benefit Plan is based has received an opinion letter) from the Internal Revenue Service
upon which it may rely regarding its qualified status under the Code, and nothing has occurred with respect to the operation of
any such plan that would reasonably be expected to result in the loss of such qualification or the imposition of any material Tax
penalty.
(e) No
Group Company or any of its respective ERISA Affiliates has at any time sponsored or has ever been obligated to contribute to,
or had any liability in respect of: (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject
to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA (including any “multiemployer plan” within the
meaning of Section (3)(37) of ERISA); (ii) a “multiple employer plan” as defined in Section 413(c) of the Code; or
(iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No Employee Benefit Plan
is a “multiple employer plan” (within the meaning of Section 4063 or 4064 of ERISA).
(f) None
of the Employee Benefit Plans provides for, and the Group Companies have no liability in respect of, post-retiree health, welfare
or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state or other Applicable Law.
(g) With
respect to any Employee Benefit Plan, no actions, suits, claims (other than non-material routine claims for benefits in the ordinary
course), audits, inquiries, investigations, proceedings or lawsuits are pending, or, to the Knowledge of the Company, threatened
against any Employee Benefit Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against
any fiduciary of any Employee Benefit Plan with respect to the operation thereof that could reasonably be expected to result in
any material liability.
(h) All
contributions, reserves or premium payments required to be made or accrued for all prior periods through the date hereof to the
Employee Benefit Plans have been timely made or accrued in all material respects in accordance with the provisions of each of Employee
Benefit Plans, Applicable Law and GAAP.
(i) Neither
the execution, delivery or performance of this Agreement nor the consummation of the Transactions will, either alone or in connection
with any other event(s): (i) result in any payment or benefit becoming due to any current or former employee, contractor or
director of the Company or any Company Subsidiary or under any Employee Benefit Plan; (ii) increase any amount of compensation
or benefits otherwise payable to any current or former employee, contractor or director of the Company or any Company Subsidiary
or under any Employee Benefit Plan; (iii) result in the acceleration of the time of payment, funding or vesting of any benefits
to any current or former employee, contractor or director of the Company or any Company Subsidiary or under any Employee Benefit
Plan; or (iv) limit the right to merge, amend or terminate any Employee Benefit Plan.
(j) Neither
the execution, delivery or performance of this Agreement nor the consummation of the Transactions shall, either alone or in connection
with any other event(s) give rise to any “excess parachute payment” as defined in Section 280G(b)(1) of the Code, any
excise Tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code.
(k) The
Company maintains no obligations to gross-up or reimburse any individual for any Tax or related interest or penalties incurred
by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(l) Each
Employee Benefit Plan which is a “nonqualified deferred compensation plan” subject to Section 409A of the Code has
been established, operated and maintained in compliance with Section 409A of the Code in all material respects.
(m) There
are no outstanding loans by the Company or any Company Subsidiary to any of their respective employees, directors or other service
providers.
(n) None
of the Company, the Company Subsidiaries or any employee, director or other service provider of the Company or any Company Subsidiary
has made any promises or commitments, whether legally binding or not, to create any additional Employee Benefit Plan, or to modify
or change in any material way any existing Employee Benefit Plan.
(o) Any
individual who performs services for the Company or any Company Subsidiary and who is not treated as an employee for U.S. federal
income tax purposes by the Company or any Company Subsidiary is not an employee under Applicable Law or for any purpose including,
without limitation, for Tax withholding purposes or Employee Benefit Plan purposes with only immaterial exceptions. The Company
and the Company Subsidiaries have no liability by reason of an individual who performs or performed services for the Company or
any Company Subsidiary in any capacity being improperly excluded from participating in an Employee Benefit Plan. Each employee
of the Company and the Company Subsidiaries has been properly classified as “exempt” or “non-exempt” under
Applicable Law with only immaterial exceptions, and no individual treated as an independent contractor or consultant by any Group
Company should have been properly classified as an employee under Applicable Law.
(p) With
respect to each Employee Benefit Plan that is mandated by a government other than the United States or subject to the Applicable
Laws of a jurisdiction outside of the United States, (i) the fair market value of the assets of each such plan to the extent funded,
the liability of each insurer for any such funded through insurance or the book reserve established for any such plan, together
with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this
Agreement, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations
most recently used to determine employer contributions to such plan, and no transaction contemplated by this Agreement shall cause
such assets or insurance obligations to be less than such benefit obligations, and (ii) each such plan has been maintained and
operated in all material respects in accordance with the applicable plan document and all Applicable Laws and other requirements,
and if intended to qualify for special tax treatment, satisfies, in all material respects, the requirements for such treatment.
3.11 Labor
Matters.
(a) No
Group Company is a party to any collective bargaining agreement or other labor Contract applicable to persons employed by any Group
Company. There are no representation proceedings, demands for recognition or petitions seeking a representation proceeding presently
pending or, to the Knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or other
labor relations tribunal, nor has any such representation proceeding, petition, or demand been brought, filed, made, or, to the
Knowledge of the Company, threatened within the last three (3) years. There is no organizing activity involving any Group Company
pending or, to the Knowledge of the Company, threatened by any labor organization or group of employees, and nor, to the Knowledge
of the Company, has there been any such activity during the last three (3) years.
(b) There
are no pending: (i) strikes, work stoppages, slowdowns, lockouts or arbitrations (nor have there been any strikes, work stoppages,
slowdowns, lockouts or arbitrations within the last three (3) years); or (ii) grievances or other labor disputes pending or, to
the Knowledge of the Company, threatened against or involving the Group Companies involving any employee of the Group Companies,
in each case, that could reasonably be expected to result in any material liability. Except as set forth on Schedule 3.11(b),
there are no charges, grievances or complaints, in each case, related to alleged unfair labor practices, pending or, to the Knowledge
of the Company, threatened by or on behalf of any employee, former employee, or labor organization that could reasonably be expected
to result in any material liability.
(c) To
the Knowledge of the Company, as of the date hereof, none of the Company’s officers or key employees has given notice of
any intent to terminate his or her employment with the Company in connection with the transactions contemplated by this Agreement.
The Group Companies are in compliance in all material respects and, to the Knowledge of the Company, each of their employees and
consultants are in compliance in all material respects, with the terms of any employment and consulting agreements between any
Group Company and such individuals.
(d) Except
as set forth on Schedule 3.11(d) of the Disclosure Schedules, there are no complaints, lawsuits, actions, investigations,
audits, charges or claims against the Group Companies pending or, to the Knowledge of the Company, threatened that could be brought
or filed, by or with any Governmental Entity based on, arising out of, in connection with or otherwise relating to the employment
or termination of employment or failure to employ by any Group Company, of any individual that could reasonably be expected to
result in any material liability. Each Group Company is in compliance in all material respects with all Applicable Laws respecting
labor, employment and employment practices, including, but not limited to, all Applicable Laws concerning terms and conditions
of employment, wages and hours, overtime, worker classification, the provision of meal and rest breaks and accurate wage statements,
immigration, the Worker Adjustment and Retraining Notification (“WARN”) Act, and any similar state or local
“mass layoff” or “plant closing” laws, collective bargaining, discrimination, civil rights, safety and
health, workers’ compensation and the collection and payment of withholding and/or social security Taxes and any similar
Tax. No Group Company is liable for any arrears of wages or penalties with respect thereto, except in each case as would not, individually
or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. Except as set forth on Schedule
3.11(d), there are no pending, or to the Knowledge of the Company, threatened Legal Proceedings against any Group Company by
any employee in connection with such employee’s employment or termination of employment by such Group Company that could
reasonably be expected to result in any material liability.
(e) Except
as set forth on Schedule 3.11(e) of the Disclosure Schedules, during the last three (3) years, (i) no allegations of workplace
sexual harassment, discrimination or other similar misconduct have been made, initiated, filed or, to the Knowledge of the Company,
threatened in writing against any Group Company or any of their respective current or former directors, officers or senior level
management employees, (ii) to the Knowledge of the Company, no incidents of any workplace sexual harassment, discrimination or
other similar misconduct have occurred, and (iii) no Group Company has entered into any settlement agreement related to allegations
of sexual harassment, discrimination or other similar misconduct by any of their directors, officers or employees described in
clause (i) hereof or any independent contractor.
3.12 Real
Property; Tangible Property.
(a) Schedule
3.12(a) of the Disclosure Schedules lists the street address of all material Owned Real Property and the current owner of each
Owned Real Property. The Company or the Company Subsidiaries have good and marketable fee title to all Owned Real Property, free
and clear of all Liens, other than Permitted Liens. Neither the Company nor any Company Subsidiary has leased or otherwise granted
to any Person the right to use or occupy the Owned Real Property or any portion thereof. There are no outstanding options, rights
of first offer or first refusal to purchase the Owned Real Property or any portion thereof or interest therein. The Company or
a Company Subsidiary has the right to access a public road or other means of lawful access to and from the Owned Real Property.
(b) Schedule 3.12(b)
of the Disclosure Schedules lists the street address of all material leasehold interest under each of the real properties under
which it is a lessee, sublessee or licensee (the “Company Leased Properties”, together with Owned Real Property,
“Company Property”). Each of the Company Leased Properties is valid, binding and enforceable, free and clear
of all Liens (other than Permitted Liens) and each of the leases, subleases, licenses or other occupancy agreements, guarantees,
agreements and documents related to any Company Leased Properties, including all amendments, terminations and modifications thereof
(collectively, the “Company Real Property Leases”) and is in full force and effect. True and correct copies
of the Company Real Property Leases have been made available to Parent. Neither the Company nor any Company Subsidiary has received
any written notice of a breach of default thereunder, and to the Knowledge of the Company, no event has occurred that, with notice
or lapse of time or both, would constitute a breach or default thereunder, except for any such breaches or defaults that would
not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No party to any Company
Real Property Lease has exercised any termination rights with respect thereto. None of the Company or any Company Subsidiary has
collaterally assigned, mortgaged, deeded in trust or granted any other security interest in any Company Real Property Lease or
any interest therein. No security deposit or portion thereof deposited with respect to any Company Real Property Lease has been
applied in respect of a material breach or default under such Company Real Property Lease which has not been redeposited in full.
Neither the Company nor any Company Subsidiary owes any brokerage commission in connection with any Company Real Property Lease.
(c) No
condemnation proceeding is pending or, to the Knowledge of the Company, threatened in writing which would preclude or impair the
use of any Company Property by the Company or any Company Subsidiary for the purposes for which it is currently used.
(d) To
the Knowledge of the Company, (i) each completed unit constituting Company Property sold and closed in connection with an offering
to the general public (other than parcels which are currently under construction or units not yet sold or not yet offered for sale
to the general public) is adequately served by proper utilities and other building services necessary for its current use, and
(ii) all of the buildings and structures located at the parcels of Company Property are structurally sound with no material defects
that are not being addressed in the ordinary course and are in good operating condition in all material respects, ordinary wear
and tear excepted.
(e) Each
Group Company owns good and marketable title to, or holds a valid leasehold interest in, or a valid license to use, all of the
material assets used by such Group Company in the operation of its business, in each case, free and clear of all material Liens
other than: (i) Permitted Liens; (ii) the rights of lessors under any leases; and (iii) the Liens specifically identified
on the Schedule 3.12(e) of the Disclosure Schedules. The tangible assets (together with the Intellectual Property rights
and contractual rights) of the Group Companies: (A) constitute all of the assets, rights and properties that are necessary for
the operation of the businesses of the Group Companies as they are now conducted, and taken together, are adequate and sufficient
for the operation of the businesses of the Group Companies as currently conducted; and (B) have been maintained in all material
respects in accordance with generally applicable accepted industry practice, are in good operating condition and repair, ordinary
wear and tear excepted, and are adequate for the uses to which they are being put, in each case of clauses (A) and (B) except as
would not, individually or in the aggregate, reasonably be expected to a Company Material Adverse Effect.
3.13 Taxes
(a) All
Tax Returns required to be filed by or on behalf of any Group Company have been duly and timely filed with the appropriate Governmental
Entity and all such Tax Returns are true, correct and complete in all material respects. All Taxes due and payable by or on behalf
of the any Group Company (whether or not shown on any Tax Return) have been fully and timely paid and the Company has adequately
reserved in the Financial Statements in accordance with GAAP for all Taxes (whether or not shown on any Tax Return) that have accrued
but are not yet due or payable as of the dates thereof.
(b) No
claim, assessment, deficiency or proposed adjustment for any Tax has been asserted or assessed by any Governmental Entity against
any Group Company (or any consolidated, combined or unitary group of which a Group Company is a member) that has not been paid
or resolved. No Tax audit, proceeding or other examination of any Group Company (or any consolidated, combined, or unitary group
of which a Group Company is a member) by any Governmental Entity is presently in progress, nor has any Group Company been notified
of any request or threat for such an audit, proceeding or other examination. No Group Company (or any consolidated, combined, or
unitary group of which a Group Company is a member) is a party to any litigation or administrative proceeding relating to Taxes.
There are no liens for Taxes (other than Permitted Liens) upon any of the assets of any Group Company (or any consolidated, combined,
or unitary group of which a Group Company is a member). No Group Company (or any consolidated, combined, or unitary group of which
a Group Company is a member) has consented to extend the time in which any Tax may be assessed or collected by any Governmental
Entity (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business), which extension
is still in effect. No Group Company has received a claim by any Governmental Entity in any jurisdiction where it does not file
a particular Tax Return or pay a particular Tax that it is or may be subject to taxation by that jurisdiction or required to file
a Tax Return,
(c) No
Group Company has requested, has received or is subject to any ruling of a Governmental Entity or has entered into any written
agreement with a Governmental Entity with respect to any Taxes, and no Group Company has entered into any “closing agreement”
as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).
(d) No
Group Company has entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2)
of the Code.
(e) No
Group Company has in any year for which the applicable statute of limitations remains open distributed stock of another person,
or has had its stock distributed by another person, in a transaction that was purported or intended to be governed in whole or
in part by Section 355 or Section 361 of the Code.
(f) No
Group Company is a party to or bound by any Tax allocation, indemnity or sharing agreement. No Group Company (A) 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 Seller)
and (B) has any liability for the Taxes of another Person pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision
of state, local or foreign Law) or as a transferee or a successor or by Contract (other than pursuant to commercial agreements
entered into in the ordinary course of business and the principal purpose of which is not related to Taxes) or otherwise.
(g) Each
Group Company has complied with all applicable Laws relating to the payment and withholding of Taxes (including withholding of
Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471-1474, 3102 and 3402 of the Code or similar provisions under any state or
foreign Laws) and has duly and timely withheld and, in each case, has paid over to the appropriate Governmental Entity any and
all amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(h) Other
than payments made on the Phantom Units, no payment under this Agreement shall be subject to any withholding Taxes under the Code
or any other Applicable Law.
(i) Each
Group Company has collected or withheld and paid (or had collected or withheld and paid on its behalf) all applicable sales, use,
ad valorem, and value added Taxes.
(j) No
Group Company has received notice from a taxing authority that it has a permanent establishment (within the meaning of an applicable
Tax treaty) or otherwise has an office or fixed place of business in a country or is subject to Tax on its net income other than
the country in which it is organized.
(k) No
Group Company 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: (i) any change in method of accounting for a
taxable period ending on or prior to the Closing Date; (ii) any “closing agreement” as described in Section 7121 (or
any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date; (iii)
any intercompany transaction, deferred intercompany gain or excess loss account described in Treasury Regulations under Section
1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); any (iv) installment sale
or open transaction disposition made on or prior to the Closing Date; or (v) any prepaid amount received on or prior to the Closing
Date.
(l) No
Group Company has any deferred payment obligation pursuant to Section 965 of the Code.
(m) The
unpaid Taxes of the Group Companies as of the date hereof (i) are estimated not to exceed the reserve for Tax liability (rather
than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face
of the Financial Statements (rather than in any notes thereto) and (ii) are estimated not to exceed that reserve as adjusted for
the passage of time through the Closing Date in accordance with the historical practice of a Group Company in filing its Tax Returns.
Since the date of the Financial Statements, the Company has not incurred any liability for Taxes arising from extraordinary gains
or losses, as that term is used in GAAP, outside the ordinary course of business and consistent with historical practice.
(n) No
Group Company has deferred any “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act)
in respect of calendar year 2020 pursuant to Section 2302 of the CARES Act, which Taxes would otherwise have been payable by the
Company or any Company Subsidiary in respect of calendar year 2020 but for the application of the CARES Act.
(o) Section
3.13(o) of the Disclosure Schedule lists all federal, state, local, and non-U.S. income Tax Returns filed (and the jurisdictions
in which such Tax Returns have been filed) with respect to each Group Company for taxable periods ended on or after December 31,
2016, indicates those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit.
(p) No
Group Company is currently required or will be required on or after the Closing Date to make any payments in respect of the transfer
or surrender of any liability to Tax or any Tax loss or relief by virtue of having been a member of a consolidated, combined, unitary,
group relief or other similar Tax group prior to the Closing.
(q) To
the knowledge of the Seller, there currently are no limitations on the utilization of the net operating losses, built-in losses,
capital losses, tax credits or other similar items of any Group Company under Sections 382, 383 or 384 of the Code (or any corresponding
or similar provision of state, local or foreign law).
(r) The
Company is classified as a corporation for U.S. federal income tax purposes and, as a result of the Merger, one hundred percent
(100%) of the issued and outstanding shares of capital stock of the Company will be exchanged into stock of Parent.
(s) For
purposes of this Section 3.13, any reference to a Group Company shall be deemed to include any Person that merged with or
was liquidated into such company.
3.14 Environmental
Matters.
(a) The
Group Companies are and, for the past one (1) year have been, in compliance in all material respects with all applicable Environmental
Laws, which compliance includes obtaining, maintaining and complying with all material Approvals required under applicable Environmental
Laws.
(b) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(i) Neither
the Company nor any Company Subsidiaries are party to any unresolved, pending or, to the Knowledge of the Company, threatened claims,
actions, suits, investigations, inquiries, notices, judgments, decrees, injunctions, orders or proceedings arising under or related
to Environmental Laws.
(ii) There
have been no Releases of or human exposure to Hazardous Substances caused by the Company or any of its Subsidiaries or, to the
Knowledge of the Company, by any other Person at any property currently or formerly owned, leased or operated by the Company or
any of its Subsidiaries, including the Company Property, other than such Releases or exposure that would not reasonably be expected
to result in the obligation of the Company or any of its Subsidiaries to undertake any material investigation or remediation. To
the Knowledge of the Company, no conditions currently exist with respect to Company Property that would reasonably be expected
to result in any of the Group Companies incurring liabilities or obligations under Environmental Laws. Neither the Company nor
any of its Subsidiaries has transported, treated, stored, or disposed of, or arranged for the transportation, treatment, storage
or disposal of, any Hazardous Substances at any site so as to result in any liability of the Company or any of its Subsidiaries
under Environmental Laws.
(c) Neither
the Company nor any of its Subsidiaries has assumed, undertaken, provided an indemnity, through a written agreement, with respect
to any outstanding liabilities of any other Person arising under applicable Environmental Law, other than indemnity obligations
in favor of Governmental Entities or the prior owners of Owned Real Property contained in written agreements entered into in the
ordinary course of business, in each case, with respect to which there are no material pending Claims or material Claims asserted
in writing for indemnification (such indemnity obligations with respect to which there are no material pending Claims or material
Claims asserted in writing for indemnification, “Ordinary Course Indemnities”).
(d) The
Group Companies have made available to Parent copies of material environmental assessments, studies, audits, analyses or reports
relating to Company Property and copies of material, non-privileged documents relating to any material and outstanding liabilities
of any of the Group Companies under Environmental Law to the extent such are in the possession, custody, or control of the Group
Companies.
3.15 Intellectual
Property.
(a) Schedule
3.15(a) of the Disclosure Schedules sets forth a true, correct and complete list, as of the date of this Agreement, of all
of the following Owned Intellectual Property: (i) registered Patents and pending applications for Patents; (ii) registered Trademarks
and pending applications for registration of Trademarks; (iii) registered Copyrights and pending applications for registration
of Copyrights (the Intellectual Property referred to in clauses (i) through (iii), collectively, the “Company Registered
Intellectual Property”); (iv) Internet domain names actively used by a Group Company that are material to any of the
businesses of the Group Companies; (v) unregistered Trademarks (for which there are no pending applications) that are material
to any of the businesses of the Group Companies; and (vi) social media accounts that are material to any of the businesses of the
Group Companies.
(b) The
Group Companies are the sole and unrestricted legal and beneficial owners of all Owned Intellectual Property, and no Owned Intellectual
Property will at Closing be subject to any Liens, adverse claims, any requirement of any past (if outstanding), present or future
royalty payments, or otherwise encumbered or restricted by any rights of any third party other than Permitted Liens.
(c) Except
as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies taken as a whole:
(i) no Company Registered Intellectual Property is involved in any interference, inter partes, reissue, reexamination, opposition
or cancellation proceeding and (ii) all of the Company Registered Intellectual Property is subsisting and, to the Knowledge of
the Company and excepting any pending applications included therein, valid and enforceable in all material respects and all necessary
registration, maintenance, renewal, and other relevant filing fees due through the date of this Agreement have been timely paid
and all necessary documents and certificates in connection therewith have been timely filed with the relevant Patent, Trademark,
Copyright, domain name registrar, or other authorities in the United States or foreign jurisdictions, as the case may be, for the
purpose of maintaining such Company Registered Intellectual Property and those Internet domain names actively used by a Group Company
that are material to any of the businesses of the Group Companies, in full force and effect.
(d) No
Group Company has received any written notice of any violation or infringement of any asserted rights of any other Person, or alleging
invalidity of any Owned Intellectual Property of the Group Companies, challenging any Group Company’s ownership of any Intellectual
Property, or otherwise with respect to any Intellectual Property of any other Person. None of the Group Companies is or has been
party to any lawsuit, or other judicial, administrative or arbitral proceeding, relating to its use of Intellectual Property, including
any such lawsuit or proceeding involving any claim that any Group Company infringed, misappropriated, diluted or otherwise violated
the Intellectual Property of any third party.
(e) Except
as set forth on Schedule 3.15(e) of the Disclosure Schedules, to the Knowledge of the Company, no third party is infringing,
in any material respect, any of the Owned Intellectual Property of the Group Companies, and the Group Companies have not sent any
written communication to or asserted or threatened any action or claim against any Person involving or relating to any Owned Intellectual
Property. The conduct of the business of the Group Companies and Affiliates as currently conducted does not materially infringe,
misappropriate or otherwise violate the Intellectual Property rights of any Person.
(f) The
Group Companies have the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works
of and sublicense, without payment to any other Person, all of the Owned Intellectual Property.
(g) Each
of the employees, agents, consultants, contractors and others who have contributed to or participated in the discovery, creation
or development of any material Intellectual Property on behalf of the Group Companies (“Personnel”) (i) has
assigned to the Company pursuant to a written and enforceable agreement all right, title and interest in such Intellectual Property,
which agreement includes a present tense assignment of Intellectual Property, or (ii) is a party to a valid “work for hire”
agreement under which the Group Companies are deemed to be the original author/owner of all subject matter included in such Intellectual
Property; or (iii) to the extent the Personnel do not have the ability to take any of the actions described in the foregoing clauses
(i) or (ii), has granted to the Group Companies a license or other legally enforceable right granting the Group Companies perpetual,
unrestricted and royalty-free rights to use such Intellectual Property. Without limiting the foregoing, the Group Companies have
secured from all employees a written and enforceable agreement providing for the non-disclosure by such Person of confidential
information of the Group Companies.
(h) Each
of the Group Companies, as applicable, has taken commercially reasonable steps to maintain the secrecy, confidentiality and value
of all material Trade Secrets included in the Owned Intellectual Property. No Trade Secret or confidential information of the Group
Companies has been authorized to be disclosed, or, to the Knowledge of the Company, has been disclosed to any of the Group Companies’
past or present employees or any other Person, in each case, other than as subject to an agreement restricting the disclosure and
use of such Trade Secret or confidential information.
(i) All
material Software owned, licensed, used, or otherwise held for use in the business of the Group Companies is in good working order
and condition and is sufficient in all material respects for the purposes for which it is used in the business of the Group Companies.
To the Knowledge of the Company, none of the Group Companies have experienced any material defects in design, workmanship or material
in connection with the use of such Software that have not been corrected. To the Knowledge of the Company, no such Software contains
any computer code or any other procedures, routines or mechanisms which may: (i) disrupt, disable, harm or impair in any material
way such Software’s operation, (ii) cause such Software to damage or corrupt any data, storage media, programs, equipment
or communications of the Group Companies or their clients, or otherwise interfere with any Group Company’s operations or
(iii) permit any third party to access any such Software to cause disruption, disablement, harm, impairment, damage erasure or
corruption.
3.16 Agreements,
Contracts and Commitments; Indebtedness.
(a) Schedule
3.16(a) of the Disclosure Schedules sets forth a true, correct and complete list of each Company Material Contract (as defined
below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract”
of the Group Companies shall mean the following (whether or not listed on the Disclosure Schedules):
(i) any
employment, consulting (with respect to an individual, independent contractor) or management Contract providing for annual payments
in excess of $250,000, but excluding any such employment, consulting, or management Contract (A) that either is terminable
by the Company at will without severance, transaction bonuses, change in control payments, or similar obligations or (B) with architects,
engineers or other independent contractors retained in connection with a specific development project;
(ii)
any collective bargaining agreement with any labor union;
(iii) any
joint venture, partnership, or strategic alliance Contract with a Person in which a Group Company owns an equity interest;
(iv) any
Contract that requires aggregate capital expenditures by Group Company in an amount in excess of $3,000,000 per annum individually,
other than (A) any purchase order or Contract for supply, inventory or trading stock acquired in the ordinary course of business,
or (B) any ordinary course Contracts with respect to land acquisitions, land development and construction;
(v) any
settlement, conciliation or similar Contract (A) with any Governmental Entity, (B) that requires a Group Company to pay any monetary
consideration of more than $250,000 after the date of this Agreement or (C) that would otherwise limit in any material respect
the operation of a Group Company (or, to the Knowledge of the Company, Parent or any of its other Affiliates from and after the
Closing) as currently operated;
(vi) any
Contract that contains any provision limiting in any material respect the ability of a Group Company to engage in any line of business
or compete with any Person, in each case, in any geographic area;
(vii) any
Contract (A) that relates to any completed acquisition, divestiture, merger or similar transaction and contains representations,
covenants, indemnities or other obligations that remain in effect (excluding (x) any transactions solely among the Group Companies,
(y) any Contract requiring the payment of aggregate consideration that is less than $5,000,000, and (z) any Contracts which would
only be required to be listed on Schedule 3.16(a) of the Disclosure Schedules pursuant to this Section 3.16(a)(vii)
due to the fact that such Contracts contain Ordinary Course Indemnities), (B) for any pending acquisition, directly or indirectly
(by merger or otherwise) of a portion of the assets (other than goods, products or services in the ordinary course of business)
or equity interest of any Person for aggregate consideration in excess of $2,000,000 pursuant to which a Group Company has continuing
“earn-out” or other similar contingent payment obligations following the date hereof in excess of $200,000 or (C) that
gives any Person the right to acquire any assets of a Group Company (excluding ordinary course commitments to purchase homes, lots,
goods, products or services) after the date hereof with a total consideration of more than $7,500,000;
(viii) any
Contract that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other Contract
providing for or securing indebtedness for borrowed money or deferred payment (in each case, whether incurred, assumed, guaranteed
or secured by any asset) in an outstanding principal amount in excess of $20,000,000, other than any such Contract between Group
Companies;
(ix) any
Contract for (A) other than individual home sales in the ordinary course of business, the sale of any land parcels (whether or
not developed) by a Group Company with a purchase price in excess of $4,000,000, (B) the purchase of any land parcels (whether
or not developed) by a Group Company in excess of $4,000,000 or (C) the option to purchase of a Group Company, in the case
of clauses (B) and (C), with a total purchase price for the land parcels subject thereto in excess of $8,000,000 (other than individual
home sales in the ordinary course of business); and
(x) any
Contract (A) pursuant to which a Group Company receives a license to use any material Intellectual Property that is used in the
business (other than licenses for “off-the-shelf” or other software widely available on generally standard terms and
conditions), (B) pursuant to which a Group Company grants to a third party a license to use any material Owned Intellectual
Property, or (C) pursuant to which any material Intellectual Property that is or has been developed by or for any Group Company,
assigned to Group Companies by any other Person, or assigned by Group Companies to any other Person.
(b) Each
Company Material Contract and each Contract in effect on the Closing Date that would have constituted a Company Material Contract
required to be set forth on Schedule 3.16(a) of the Disclosure Schedules if it were in effect as of the date hereof,
is in full force and effect and, to the Knowledge of the Company, is valid and binding upon and enforceable against each of the
parties thereto, except (i) insofar as enforceability may be limited by applicable Enforceability Exceptions or (ii) to the extent
that any consents set forth in Schedule 3.4(a) of the Disclosure Schedules are not obtained, and in each case, except for
such failures as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
True, correct and complete copies of all Company Material Contracts have been made available to Parent.
(c) Schedule
3.16(c) of the Disclosure Schedules sets forth a true, correct and complete description of Indebtedness as of the date hereof,
in each case in excess of $5 million, together with the name of the Group Company with which such Indebtedness is associated, including
the Company’s good faith estimate of any Payoff Amount.
3.17 Insurance.
Each of the Group Companies maintains insurance policies or fidelity or surety bonds covering its assets, business, equipment,
properties, operations, employees, officers and directors (collectively, the “Insurance Policies”), and to the
Knowledge of the Company, such Insurance Policies (i) cover material insurable risks in respect of its business and asset, and
(ii) are in full force and effect. The coverages provided by such Insurance Policies are usual and customary in amount and scope
for the Group Companies’ business and operations as concurrently conducted, and sufficient to comply with any insurance required
to be maintained by Company Material Contracts. No Group Company or, to the Knowledge of the Company, third party is in breach
or default (including with respect to the payment of premiums or the giving of notices), under any Insurance Policy, and no written
notice of cancellation or termination has been received by any Group Company with respect to any of the Insurance Policies. There
is no pending material claim by any Group Company against any insurance carrier under any of the existing Insurance Policies for
which coverage has been denied or disputed by the applicable insurance carrier (other than a customary reservation of rights notice).
3.18 Interested
Party Transactions. Except as set forth in Schedule 3.18 of the Disclosure Schedules:
(a) The
Group Companies are not parties to any Contracts with any Affiliate, shareholder, employee, member, manager, officer or director
of any Group Company other than Contracts governing an individual’s provision of services to the Group Companies and employee
benefits and Contracts between Group Companies.
(b) No
Group Company has loaned any amounts that remain outstanding to any Affiliate, shareholder, employee, member, manager, officer
or director of any Group Company, other than intercompany loans between Group Companies, and no Group Company has borrowed material
funds from any of the foregoing that remains outstanding other than intercompany loans between Group Companies.
(c) There
are no loans, advances or Indebtedness incurred by any Group Company from any Affiliate, shareholder, employee, member, manager,
officer or director of any Group Company other than intercompany loans and advances.
(d) No
Affiliate, shareholder, employee, member, manager, officer or director of a Group Company (other than another Group Company) (i)
owns any material property right, tangible or intangible, which is used by a Group Company in the conduct of its business or (ii) owns,
directly or, to the Knowledge of the Company, indirectly, any Person that is a material customer, supplier, competitor or lessor
of any Group Company.
3.19 Certain
Provided Information. The information relating to the Group Companies supplied by the Company for inclusion in the Proxy Statement
will not, as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to the equity
holders of Parent Class A Stock or at the time of the Special Meeting, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances
under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant
with respect to (a) statements made or incorporated by reference therein based on information supplied by Parent or Merger Sub
for inclusion or incorporation by reference in the Proxy Statement or any Parent SEC Reports or (b) any projections or forecasts
included in the Proxy Statement.
3.20 Solvency.
The Company is not entering into this Agreement or the transactions contemplated hereby with the actual intent to hinder, delay
or defraud either present or future creditors.
3.21 Data
Protection and Information Technology.
(a) Each
Group Company’s practices with regard to the collection, dissemination and use of Company Data are and have been in accordance
in all material respects with Applicable Laws relating to data protection, contractual commitments of such Group Company and any
published privacy policies.
(b) For
the thirty six (36) months immediately preceding the date of this Agreement and the Closing Date, except as disclosed in Section
3.21(b) of the Disclosure Schedules: (i) none of the Group Companies has received any written notification or allegation from
any competent authority (including any information or enforcement notice, or any transfer prohibition notice) alleging that any
Group Company has not complied in any material respect with applicable data protection Laws and (ii) there has been no loss of,
or unauthorized access, use, disclosure or modification of any Company Data.
(c) No
individual has successfully claimed and, to the Knowledge of the Company, no grounds exist for an individual to claim compensation
from any Group Company for material breaches of applicable data protection Laws or for any material loss or unauthorized disclosure
of Personal Data.
(d) All
material information technology hardware and software used or held for use by any Group Company in its business (the “IT
Assets”) are either owned by, or properly licensed or leased to, the Group Companies. The IT Assets are adequate and
sufficient in all material respects to meet the processing and other business requirements of the Group Companies as the business
is currently conducted. To the Knowledge of the Company, the IT Assets (i) materially operate and perform in accordance with
their documentation and functional specifications and otherwise as required by the Group Companies’ business as currently
conducted, (ii) have performed adequately and not materially malfunctioned or failed at any time during the last thirty six (36)
months (subject to temporary problems arising in the ordinary course of business that did not materially disrupt the operations
of any Group Company and which have been corrected).
(e) To
the Knowledge of the Company, during the last thirty six (36) months, no person has gained unauthorized access to any IT Asset
(excluding any external hack or similar attack that did not affect the IT Assets for a prolonged period or pose any material threat
to the operations of the IT Assets).
(f) Each
Group Company has taken commercially reasonable precautions (including by way of outsourcing to third parties), including establishing
and maintaining contingency plans, back-up facilities and disaster recovery technology processes consistent with industry standard
practices, and necessary to protect (a) the material computer systems (hardware and software) and related systems (such as networks)
implemented or used by the Group Companies and (b) the material storage capacities and requirements of each Group Company.
3.22 Foreign
Corrupt Practices Act. For the last five (5) years, none of the Group Companies or, to the Knowledge of the Company, any of
the Group Companies’ respective directors, officers, employees, Affiliates or any other Persons acting on their behalf has,
in connection with the operation of the business of the Group Companies: (a) made, offered or promised to make or offer any payment,
loan or transfer of anything of value, including any reward, advantage or benefit of any kind, to or for the benefit of any government
official, candidate for public office, political party or political campaign, or any official of such party or campaign, for the
purpose of: (i) influencing any act or decision of such government official, candidate, party or campaign or any official of such
party or campaign; (ii) inducing such government official, candidate, party or campaign or any official of such party or campaign
to do or omit to do any act in violation of a lawful duty; (iii) obtaining or retaining business for or with any Person; (iv) expediting
or securing the performance of official acts of a routine nature; or (v) otherwise securing any improper advantage; (b) paid, offered
or agreed or promised to make or offer any bribe, payoff, influence payment, kickback, unlawful rebate or other similar unlawful
payment of any nature; (c) made, offered or agreed or promised to make or offer any unlawful contributions, gifts, entertainment
or other unlawful expenditures; (d) established or maintained any unlawful fund of corporate monies or other properties; (e) created
or caused the creation of any false or inaccurate books and records related to any of the foregoing; (f) otherwise violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§78dd-1, et seq., the United Kingdom Bribery
Act of 2010 or any other applicable anti-corruption or anti-bribery Law; or (g) violated or operated in noncompliance with
any export or import restrictions, anti-boycott regulations, embargo or sanctions regulations or other Applicable Law.
3.23 Brokers;
Third Party Expenses. Except for Rothschild & Co, the fees, commissions and expenses of which will constitute Company Transaction
Costs and be paid at Closing, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee
or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Group
Companies.
3.24 Non-Reliance.
The Group Companies and their Affiliates have conducted an independent due diligence investigation and verification of the financial
condition, results of operations, assets, liabilities, and properties and projected operations of Parent and Merger Sub. Each of
the Group Companies and their Affiliates has relied solely upon the representations and warranties expressly made by Parent and
Merger Sub in Article IV of this Agreement and the certificates delivered in connection herewith or pursuant hereto, in
each case, as qualified by the Disclosure Schedules (subject to Section 11.16) (collectively, the “Express Parent
Representations”), in entering into the transactions contemplated by this Agreement and not on any other factual representations,
opinions or statements of any kind of Parent, Merger Sub or any of their respective Affiliates, agents, representatives or any
other Person. Each of the Group Companies (for itself and on behalf of its Affiliates and its and their agents and representatives,
and each of the successors and assigns of the foregoing) hereby (i) acknowledges and agrees that none of Parent, Merger Sub or
any other Person is making or has made any representation, warranty or statement of any kind or nature expressed or implied, at
law or in equity, in respect of Parent or Merger Sub or either of their respective businesses, assets, liabilities, operations,
prospects or condition (including any relating to the future or historical financial condition, results of operations, prospects,
assets or liabilities of Parent or Merger Sub, or the quality, quantity or condition of Parent’s or Merger Sub’s assets),
other than the Express Parent Representations, and (ii) irrevocably disclaims reliance on any representations, warranties or statements
of any kind or nature expressed or implied by any Person whatsoever, or the accuracy or completeness of any information provided
to (or otherwise acquired by) the Group Companies or any of their respective agents or representatives, in each case other than
the Express Parent Representations.
Article
IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUB
Except: (i) as set forth
in the Disclosure Schedules, but subject to Section 11.16; and (ii) as disclosed in the Parent SEC Reports filed with the
SEC prior to the date of this Agreement (excluding any disclosures in the “Forward-Looking Statements” and “Risk
Factors” sections of such Parent SEC Reports), Parent and Merger Sub represent and warrant to the Seller and the Company
as of the date hereof and as of the Closing Date as follows:
4.1 Organization
and Qualification.
(a) Each
of Parent and Merger Sub is a company duly incorporated or organized, validly existing and in good standing under the laws of the
State of Delaware, and as of immediately prior to the Closing, will be a company duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) Each
of Parent and Merger Sub has the requisite corporate or limited liability power and authority to own, lease and operate its assets
and properties and to carry on its business as it is now being conducted, except, in each case, as would not, individually or in
the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
(c) Neither
Parent nor Merger Sub is in violation of any of the provisions of its respective Charter Documents.
(d) Each
of Parent and Merger Sub is duly qualified or licensed to do business as a foreign corporation or limited liability company and
is in good standing, in each jurisdiction where the character of the properties and assets owned, leased or operated by it or the
nature of its activities makes such qualification or licensing necessary. Each jurisdiction in which Parent and Merger Sub are
so qualified or licensed is listed on Schedule 4.1(d) of the Disclosure Schedules.
4.2 Parent
Subsidiaries. Parent has no direct or indirect Subsidiaries or participations in joint ventures or other entities, and does
not own, directly or indirectly, any equity interests or other interests or investments (whether equity or debt) in any Person,
whether incorporated or unincorporated, other than Merger Sub. Merger Sub does not have any assets or properties of any kind, does
not now conduct and has never conducted any business, and has and will have at the Closing no obligations or liabilities of any
nature whatsoever, except for such obligations as are imposed under this Agreement or the other Transaction Agreements or in connection
herewith or therewith. Merger Sub is an entity that has been formed solely for the purpose of engaging in the Transactions.
4.3 Capitalization.
(a) As
of the date of this Agreement: (i) 1,000,000 preferred shares, par value $0.0001 per share, of Parent (“Parent Preferred
Stock”) are authorized and no shares are issued and outstanding; (ii) 100,000,000 Class A common shares of Parent, par
value $0.0001 per share (“Parent Class A Stock”), are authorized and 13,435,061 are issued and outstanding;
(iii) 15,000,000 Class B common shares of Parent, par value $0.0001 per share (“Parent Class B Stock” and,
together with the Parent Preferred Stock and the Parent Class A Stock, the “Parent Shares”), are authorized
and 3,881,250 are issued and outstanding, and upon the Closing of the Transactions; (iv) 7,760,000 warrants (the “Private
Placement Warrants”) are outstanding; and (v) 15,525,000 warrants (the “Public Warrants”, collectively
with the Private Placement Warrants, the “Parent Warrants”) are outstanding. All outstanding Parent Class A
Stock, Parent Class B Stock, Private Placement Warrants and Public Warrants have been duly authorized, validly issued, fully paid
and are non-assessable and are not subject to preemptive rights.
(b) The
authorized capital stock of Merger Sub consists of 100 shares of common stock, par value $0.001 per share (the “Merger
Sub Common Stock”). As of the date hereof, 100 shares of Merger Sub Common Stock are issued and outstanding. All outstanding
shares of Merger Sub Common Stock have been duly authorized, validly issued, fully paid and are non-assessable and are not subject
to preemptive rights, and are held by Parent.
(c) Except
for the Parent Warrants and the Forward Purchase Agreements, there are no outstanding options, warrants, rights,
convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based
performance units, commitments or Contracts of any kind to which Parent or Merger Sub is a party or by which any of them is
bound obligating Parent or Merger Sub to issue, deliver or sell, or cause to be issued, delivered or sold, additional Parent
Shares, Merger Sub Common Stock or any other shares of capital stock or membership interests or other interest or
participation in, or any security convertible or exercisable for or exchangeable into Parent Shares, Merger Sub Common Stock
or any other shares of capital stock or membership interests or other interest or participation in Parent or Merger Sub.
(d) Each
Parent Share, share of Merger Sub Common Stock and Parent Warrant: (i) has been issued in compliance in all material respects with:
(A) Applicable Law; and (B) the Charter Documents of Parent or Merger Sub, as applicable; and (ii) was not issued in violation
of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any
Applicable Law, the Charter Documents of Parent or Merger Sub, as applicable or any Contract to which any of Parent or Merger Sub
is a party or otherwise bound by.
(e) All
outstanding shares of capital stock of the Subsidiaries of Parent are owned by Parent, or a direct or indirect wholly-owned Subsidiary
of Parent, free and clear of all Liens (other than Permitted Liens).
(f) Subject
to approval of the Parent Stockholder Matters, the shares of Parent Class A Stock to be issued by Parent in connection with the
Transactions, 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 stockholders of Parent and will be capable of
effectively vesting in the Company Stockholders title to all such securities, free and clear of all Liens (other than Liens arising
pursuant to applicable securities Law).
(g) Each
holder of any of Parent Shares initially issued to the Sponsor in connection with Parent’s initial public offering: (i) is
obligated to vote all of such Parent Shares in favor of approving the Transactions and (ii) is not entitled to elect to redeem
any of such Parent pursuant to the Parent Organizational Documents.
(h) Except
as set forth in the Parent Organizational Documents and in connection with the Transactions, there are no registration rights,
and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings to which Parent is a
party or by which Parent is bound with respect to any ownership interests of Parent.
(i) The
holders of the Parent Class B Stock have waived any adjustment to the Initial Conversion Ratio (as defined in Section 4.3(b) of
the Parent Charter).
4.4 Authority
Relative to this Agreement. Each of Parent and Merger Sub has the requisite power and authority to: (a) execute, deliver
and perform this Agreement and the other Transaction Agreements to which it is a party, and each ancillary document that it has
executed or delivered or is to execute or deliver pursuant to this Agreement; and (b) carry out its obligations hereunder
and thereunder and, to consummate the Transactions (including the Merger). The execution, delivery or performance by Parent and
Merger Sub of this Agreement and the other Transaction Agreements to which each of them is a party, and the consummation by Parent
and Merger Sub of the Transactions (including the Merger) have been duly and validly authorized by all necessary corporate or limited
liability company action on the part of each of Parent and Merger Sub, and no other proceedings on the part of Parent or Merger
Sub are necessary to authorize this Agreement or the other Transaction Agreements to which each of them is a party or to consummate
the transactions contemplated thereby, other than approval of the Parent Stockholder Matters. This Agreement and the other Transaction
Agreements to which each of them is a party have been duly and validly executed and delivered by Parent and Merger Sub and, assuming
the due authorization, execution and delivery thereof by the other Parties, constitute the legal, valid and binding obligations
of Parent and Merger Sub (as applicable), enforceable against Parent and Merger Sub (as applicable) in accordance with their terms,
except insofar as enforceability may be limited by applicable Enforceability Exceptions.
4.5 No
Conflict; Required Filings and Consents.
(a) Neither
the execution, delivery nor performance by Parent and Merger Sub of this Agreement or the other Transaction Agreements to which
each of them is a party, nor (assuming approval of the Parent Stockholder Matters is obtained) the consummation of the Transactions
shall: (i) conflict with or violate their respective Charter Documents or (ii) conflict with or violate any Applicable Law, except,
with respect to clause (ii) as would not, individually or in the aggregate, have a Parent Material Adverse Effect or that arise
as a result of any facts or circumstances relating to the Company or any of its Affiliates.
(b) The
execution, delivery or performance by each of Parent and Merger Sub of this Agreement and the other Transaction Agreements to which
it is a party, does not, and the performance of its obligations hereunder and thereunder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental Entity, except: (i) for the filing of the
Certificate of Merger in accordance with the DGCL; (ii) for applicable requirements, if any, of the Securities Act, the Exchange
Act, blue sky laws, and the rules and regulations thereunder, and appropriate documents with the relevant authorities of other
jurisdictions in which Parent is qualified to do business; (iii) for the filing of any notifications required under the HSR
Act and the expiration of the required waiting period thereunder; and (iv) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be
expected to be material to Parent and Merger Sub, taken as a whole or (v) as may be necessary as a result of any facts or circumstances
relating solely to the Company or any of its Affiliates.
4.6 Parent
SEC Reports and Financial Statements.
(a) Parent
has filed all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed or
furnished by Parent with the SEC under the Exchange Act or the Securities Act since Parent’s incorporation to the date of
this Agreement, together with any amendments, restatements or supplements thereto (all of the foregoing filed prior to the date
of this Agreement, the “Parent SEC Reports”), and will have filed all such forms, reports, schedules, statements
and other documents required to be filed subsequent to the date of this Agreement through the Closing Date (the “Additional
Parent SEC Reports”). All Parent SEC Reports and any correspondence from or to the SEC or Nasdaq (other than such correspondence
in connection with the initial public offering of Parent) and all certifications and statements required by: (i) Rule 13a-14 or
15d-14 under the Exchange Act; or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of
the foregoing (collectively, the “Certifications”) are available on the SEC’s Electronic Data-Gathering,
Analysis and Retrieval system (EDGAR) in full without redaction. Parent has heretofore furnished to the Company true and correct
copies of all amendments and modifications that have not been filed by Parent with the SEC to all agreements, documents and other
instruments that previously had been filed by Parent with the SEC and are currently in effect. The Parent SEC Reports were, and
the Additional Parent SEC Reports will be, prepared in all material respects in accordance with the requirements of the Securities
Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The Parent SEC
Reports did not, and the Additional Parent SEC Reports will not, at the time they were or are filed, as the case may be, with the
SEC contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Certifications
are each true and correct in all material respects. Parent maintains disclosure controls and procedures required by Rule 13a-15(e)
or 15d-15(e) under the Exchange Act. As used in this Section 4.6, the term “file” shall be broadly construed
to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq.
(b) Each
director and executive officer of Parent has filed with the SEC on a timely basis all statements required with respect to Parent
by Section 16(a) of the Exchange Act and the rules and regulations thereunder.
(c) All
comment letters received by Parent from the SEC or the staff thereof since its inception through the date hereof and all responses
to such comment letters filed by or on behalf of Parent are either publicly available EDGAR without redaction or have otherwise
been made available to the Company.
(d) Each
of the financial statements (including, in each case, any notes thereto) contained in the Parent SEC Reports was prepared in accordance
with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) and each fairly presents, in all material respects, the
financial position, results of operations and cash flows of Parent as at the respective dates thereof and for the respective periods
indicated therein.
(e)
Parent has no liability or obligation of any nature, whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, of a nature required to be reflected on a balance sheet prepared in accordance with GAAP, other than
(i) liabilities and obligations incurred since the date of June 30, 2020 in the ordinary course of business that are not, individually
or in the aggregate, material to Parent and none of which results from or arises out of any material breach of or material default
under any Contract, material breach of warranty, tort, material infringement or material violation of Applicable Law; (ii) liabilities
and obligations incurred in connection with the transactions contemplated by Parent as set forth in this Agreement; and (iii) liabilities
and obligations which are not, individually or in the aggregate, material to Parent.
(f) All
non-audit services were approved by the audit committee of the board of directors and committees of Parent. Parent has no off-balance
sheet arrangements.
(g) Parent
maintains a standard system of accounting established and administered in accordance with GAAP. Parent has designed and maintains
a system of internal controls over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act, sufficient
to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with GAAP. Parent maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(h) To
the Knowledge of Parent, (i) no employee of Parent has provided information to any law enforcement agency regarding the commission
or possible commission of any crime or the violation or possible violation of any Applicable Law, and (ii) neither Parent nor any
officer, employee, contractor, subcontractor or agent of Parent has discharged, demoted, suspended, threatened, harassed or in
any other manner discriminated against an employee of Parent in the terms and conditions of employment because of any act of such
employee described in 18 U.S.C. § 1514A(a).
4.7 Absence
of Certain Changes or Events. Except as set forth in Parent SEC Reports filed prior to the date of this Agreement, and except
as contemplated by this Agreement, since the date of the Balance Sheet, there has not been: (a) any Parent Material Adverse
Effect; (b) any declaration, setting aside or payment of any dividend on, or other distribution in respect of, any of Parent’s
capital stock, or any purchase, redemption or other acquisition by Parent of any of Parent’s capital stock or any other securities
of Parent or any options, warrants, calls or rights to acquire any such shares or other securities; (c) any split, combination
or reclassification of any of Parent’s capital stock; (d) any material change by Parent in its accounting methods, principles
or practices, except as required by concurrent changes in GAAP (or any interpretation thereof) or Applicable Law; (e) any
change in the auditors of Parent; (f) any issuance of capital stock of Parent; (g) any revaluation by Parent of any of
its assets, including, without limitation, any sale of assets of Parent other than in the ordinary course of business; or (h) any
action taken or agreed upon by Parent or any of its Subsidiaries that would be prohibited by Section 6.1 if such action
were taken on or after the date hereof without the consent of the Seller.
4.8 Litigation.
There are no Legal Proceedings pending or, to the Knowledge of Parent, threatened in writing against or otherwise relating to Parent
or any of its Subsidiaries, before any Governmental Entity: (a) challenging or seeking to enjoining, alter or materially delay
or otherwise would reasonably be expected to adversely affect the consummation of the Transactions; or (b) that would, individually
or in the aggregate, reasonably be expected to be material to Parent.
4.9 Trust
Account.
(a) As
of the day immediately preceding the date hereof, Parent had $141,970,563.17 in a trust account (the “Trust Account”),
maintained and invested pursuant to that certain Investment Management Trust Agreement (the “Trust Agreement”)
dated June 19, 2018, by and between Parent and Continental Stock Transfer & Trust Company, a New York corporation (“Continental”)
for the benefit of its public stockholders, with such funds invested in United States Government securities or money market funds
meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act. Other than pursuant to the Trust Agreement,
the obligations of Parent under this Agreement are not subject to any conditions regarding Parent’s, its Affiliates’,
or any other Person’s ability to obtain financing for the consummation of the Transactions.
(b) The
Trust Agreement has not been amended or modified and is valid and in full force and effect and is enforceable in accordance with
its terms, except insofar as enforceability may be limited by applicable Enforceability Exceptions. Parent has complied in all
material respects with the terms of the Trust Agreement and is not in breach thereof or default thereunder and there does not exist
under the Trust Agreement any event which, with the giving of notice or the lapse of time, would constitute such a breach or default
by Parent or, to the Knowledge of Parent, the trustee under the Trust Agreement. There are no separate Contracts, side letters
or other understandings (whether written or unwritten, express or implied): (i) between Parent and Continental that would cause
the description of the Trust Agreement in the Parent SEC Reports to be inaccurate in any material respect; or (ii) to the Knowledge
of Parent, that would entitle any Person (other than stockholders of Parent holding Parent Class A Stock sold in Parent’s
initial public offering who shall have elected to redeem their shares of Parent Class A Stock pursuant to Parent’s Charter
Documents) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account
may be released except: (A) to pay income and franchise taxes from any interest income earned in the Trust Account; and (B) to
redeem Parent Class A Stock in accordance with the provisions of Parent’s Charter Documents. There are no Legal Proceedings
pending or, to the Knowledge of Parent, threatened in writing with respect to the Trust Account.
4.10 Taxes.
(a) All
Tax Returns required to be filed by or on behalf of Parent and Merger Sub have been duly and timely filed with the appropriate
Governmental Entity and all such Tax Returns are true, correct and complete in all material respects. All Taxes payable by or on
behalf of Parent and Merger Sub (whether or not shown on any Tax Return) have been fully and timely paid and Parent and Merger
Sub have adequately reserved on the applicable financial statements in accordance with GAAP for all Taxes (whether or not shown
on any Tax Return) that have accrued but are not yet due or payable as of the dates thereof.
(b) No
claim, assessment, deficiency or proposed adjustment for any Tax has been asserted or assessed by any Governmental Entity against
Parent or Merger Sub (or any consolidated, combined or unitary group of which Parent or Merger Sub is a member) that has not been
paid or resolved. No Tax audit, proceeding or other examination of Parent or Merger Sub (or any consolidated, combined, or unitary
group of which Parent or Merger Sub is a member) by any Governmental Entity is presently in progress, nor has Parent or Merger
Sub been notified of any request or threat for such an audit, proceeding or other examination. None of Parent or Merger Sub (or
any consolidated, combined, or unitary group of which Parent or Merger Sub is a member) is a party to any litigation or administrative
proceeding relating to Taxes. There are no Liens for Taxes (other than Permitted Liens) upon any of the assets of Parent or Merger
Sub (or any consolidated, combined, or unitary group of which Parent or Merger Sub is a member). None of Parent or Merger Sub (or
any consolidated, combined, or unitary group of which Parent or Merger Sub is a member) has consented to extend the time in which
any Tax may be assessed or collected by any Governmental Entity (other than pursuant to extensions of time to file Tax Returns
obtained in the ordinary course of business), which extension is still in effect. None of Parent or Merger Sub has received a claim
by any Governmental Entity in any jurisdiction where it does not file a particular Tax Return or pay a particular Tax that it is
or may be subject to taxation by that jurisdiction or required to file a Tax Return.
(c) None
of Parent or Merger Sub has requested, has received or is subject to any ruling of a Governmental Entity or has entered into any
written agreement with a Governmental Entity with respect to any Taxes, and none of Parent or Merger Sub has entered into any “closing
agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign
income Tax Law).
(d) None
of Parent or Merger Sub has entered into or been a party to any “listed transaction” within the meaning of Section
6707A(c)(2) of the Code.
(e) None
of Parent or Merger Sub has in any year for which the applicable statute of limitations remains open distributed stock of another
person, or has had its stock distributed by another person, in a transaction that was purported or intended to be governed in whole
or in part by Section 355 or Section 361 of the Code.
(f) None
of Parent or Merger Sub is a party to or bound by any Tax allocation, indemnity or sharing agreement. None of Parent or Merger
Sub (A) 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 Parent) and (B) has any liability for the Taxes of another Person pursuant to Treasury Regulation Section
1.1502-6 (or any similar provision of state, local or foreign Law) or as a transferee or a successor or by Contract (other than
pursuant to commercial agreements entered into in the ordinary course of business and the principal purpose of which is not related
to Taxes) or otherwise.
(g) Each
of Parent and Merger Sub has complied with all applicable Laws relating to the payment and withholding of Taxes (including withholding
of Taxes pursuant to Sections 1441, 1442, 1445, 1446, 1471-1474, 3102 and 3402 of the Code or similar provisions under any state
or foreign Laws) and has duly and timely withheld and, in each case, has paid over to the appropriate Governmental Entity any and
all amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.
(h) Each
of Parent and Merger Sub has collected or withheld and paid (or had collected or withheld and paid on its behalf) all applicable
sales, use, ad valorem, and value added Taxes.
(i) None
of Parent or Merger Sub has received notice from a taxing authority that it has a permanent establishment (within the meaning of
an applicable Tax treaty) or otherwise has an office or fixed place of business in a country or is subject to Tax on its net income
other than the country in which it is organized.
(j) None
of Parent or Merger Sub 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: (i) any change in method of accounting
for a taxable period ending on or prior to the Closing Date; (ii) any “closing agreement” as described in Section 7121
(or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date;
(iii) any intercompany transaction, deferred intercompany gain or excess loss account described in Treasury Regulations under Section
1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); any (iv) installment sale
or open transaction disposition made on or prior to the Closing Date; or (v) any prepaid amount received on or prior to the Closing
Date.
(k) None
of Parent or Merger Sub has any deferred payment obligation pursuant to Section 965 of the Code.
(l) None
of Parent or Merger Sub is currently required or will be required on or after the Closing Date to make any payments in respect
of the transfer or surrender of any liability to Tax or any Tax loss or relief by virtue of having been a member of a consolidated,
combined, unitary, group relief or other similar Tax group prior to the Closing.
(m) To
the Knowledge of Parent and Merger Sub, there is no fact or circumstance that would reasonably be expected to prevent the Merger
from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
4.11 Certain
Provided Information. None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference
in the Proxy Statement (or any amendment or supplement thereto) will, at the date mailed to the equity holders of Parent or at
the time of the Special Meeting, 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. Notwithstanding the foregoing, Parent makes no representation, warranty or covenant with respect to: (a) statements
made or incorporated by reference therein based on information supplied by the Company or the Company Subsidiaries for inclusion
or incorporation by reference in the Proxy Statement; or (b) any projections or forecasts included in the Proxy Statement.
4.12 Board
Approval; Stockholder Vote. The board of directors of Parent (including any required committee or subgroup of the board of
directors of Parent) has, as of the date of this Agreement, unanimously: (a) approved and declared the advisability of this Agreement,
the other Transaction Agreements and the consummation of the Transactions; and (b) determined that the consummation of the Transactions
is in the best interest of the stockholders of Parent. Other than the approval of the Parent Stockholder Matters, no other corporate
proceedings on the part of Parent are necessary to approve the consummation of the Transactions.
4.13 Title
to Assets. Subject to the restrictions on use of the Trust Account set forth in the Trust Agreement, Parent owns good and marketable
title to, or holds a valid leasehold interest in, or a valid license to use, all of the assets used by Parent in the operation
of its business and which are material to Parent, in each case, free and clear of any Liens (other than Permitted Liens).
4.14 Solvency.
Neither Parent nor Merger Sub is entering into this Agreement or the transactions contemplated hereby with the actual intent to
hinder, delay or defraud either present or future creditors.
4.15 Related
Person Transactions. Except as described in the Parent SEC Reports, no transactions or Contracts, or series of related transactions
or Contracts, between Parent, on the one hand, and any present or former officer, director, manager or Affiliate of Parent or,
to the Knowledge of Parent, any of their respective “associates” or “immediate family” members (as such
terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, will continue in effect following the Closing.
4.16 Brokers.
Other than fees or commissions for which Parent will be solely responsible, none of Parent, Merger Sub, nor any of their respective
Affiliates, including Sponsor, has any liability or obligation to pay, or is entitled to receive, any fees or commissions to any
broker, finder or agent with respect to the Transactions.
4.17 Non-Reliance.
Parent and its Affiliates have (a) been afforded access to the books, records, facilities and personnel of the Group Companies
for purposes of conducting a due diligence investigation of the Group Companies and their businesses, and (b) conducted an independent
due diligence investigation and verification of the financial condition, results of operations, assets, liabilities, properties
and projected operations of the Group Companies. Each of Parent and its Affiliates has relied solely upon the representations and
warranties expressly made by the Company in Article III of this Agreement and the certificates delivered in connection herewith
or pursuant hereto, in each case, as qualified by the Disclosure Schedules (subject to Section 11.16) (collectively, the
“Express Company Representations”), in entering into the transactions contemplated by this Agreement and not
on any other factual representations, opinions or statements of any kind of the Group Companies, the Seller or any of their respective
Affiliates, agents, representatives or any other Person. Each of Parent and Merger Sub (for itself and on behalf of its Affiliates
and its and their agents and representatives, and each of the successors and assigns of the foregoing) hereby (i) acknowledges
and agrees that none of the Group Companies, Seller or any other Person is making or has made any representation, warranty or statement
of any kind or nature expressed or implied, at law or in equity, in respect of any Group Company or its businesses, assets, liabilities,
operations, prospects or condition (including any relating to the future or historical financial condition, results of operations,
prospects, assets or liabilities of the Group Companies, or the quality, quantity or condition of the Company’s assets),
other than the Express Company Representations, and (ii) irrevocably disclaims reliance on any representations, warranties
or statements of any kind or nature expressed or implied by any Person whatsoever, or the accuracy or completeness of any information
provided to (or otherwise acquired by) Parent, Merger Sub or either of their respective agents or representatives, in each case
other than the Express Company Representations.
Article
V
COVENANTS OF THE COMPANY
5.1 Conduct
of Business by the Company and the Company Subsidiaries.
(a) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its
terms and the Closing, the Company shall, and shall cause the Company Subsidiaries to, carry on its business in the ordinary course
consistent with past practice, except: (x) to the extent that Parent shall otherwise consent in writing (such consent not to be
unreasonably withheld, conditioned or delayed), (y) as expressly required by this Agreement or the Disclosure Schedules or (z) as
required by Applicable Law. Without limiting the generality of the foregoing, except as required or expressly permitted by the
terms of this Agreement or the Disclosure Schedules, or as required by Applicable Law, without the prior written consent of Parent
(such consent not to be unreasonably withheld, conditioned or delayed), during the period from the date of this Agreement and continuing
until the earlier of the termination of this Agreement pursuant to its terms and the Closing, the Company shall not, and shall
cause the Company Subsidiaries not to, do any of the following:
(i) except
for transactions solely among the Group Companies: (A) issue, sell, pledge, dispose of, grant, transfer or encumber any shares
of capital stock of, or other securities in, the Company or any Company Subsidiary; or (B) declare, set aside or pay any cash or
non-cash dividend or make any other cash or non-cash distribution;
(ii) amend
the governing documents of the Company;
(iii) fail
to use commercially reasonable efforts to maintain or renew any Owned Intellectual Property that is registered, issued or the subject
of a pending application;
(iv) (A)
merge, consolidate or combine with any Person (other than transactions solely between or among the Group Companies) or (B) acquire
or agree to acquire by merging or consolidating with, purchasing any equity interest in or a substantial portion of the assets
of, or by any other manner, any business or any corporation, partnership, association or other business organization or division
thereof, in each case other than (1) sales of property or assets in accordance with Non-Refundable Deposit Contracts entered into
before the date of this Agreement in transactions not exceeding $50,000,000 individually or $100,000,000 in the aggregate and made
available to Parent and (2) transactions not constituting sales of property or assets contemplated in clause (1) immediately above,
not exceeding $25,000,000 individually or $50,000,000 in the aggregate;
(v) sell,
lease, license, sublicense, abandon, divest, transfer, cancel, abandon or permit to lapse or expire, dedicate to the public, or
otherwise dispose of, or agree to do any of the foregoing, or otherwise dispose of material assets or properties, other than any
sale, lease or disposition in the ordinary course of business consistent with past practice (including sales to homebuyers in the
ordinary course of business and sales of property or assets in accordance with Non-Refundable Deposit Contracts entered into before
the date of this Agreement and made available to Parent) or pursuant to agreements existing on the date hereof and set forth on
Schedule 5.1(a)(v) of the Disclosure Schedules;
(vi) (A)
issue or sell any debt securities or rights to acquire any debt securities of any of the Group Companies or guarantee any debt
securities of another Person; (B) make, incur, create or assume any loans, advances or capital contributions to, or investments
in, or guarantee any Indebtedness of, any Person other than any of the Group Companies, except for loans, advances or capital contributions
pursuant to and in accordance with the terms of agreements or legal obligations existing as of the date of this Agreement; (C)
except in the ordinary course of business consistent with past practice, create any material Liens on any material property or
assets of any of the Group Companies in connection with any Indebtedness thereof (other than Permitted Liens); (D) fail to comply
with the terms of the Existing Credit Agreements or take any action, or omit to take any action, that would constitute or result
in a default or event of default under any of the Existing Credit Agreements; (E) cancel or forgive any material third-party Indebtedness
owed to any of the Group Companies; or (F) make, incur or commit to make any individual capital expenditure in excess of $250,000
other than in the ordinary course of business consistent with past practice; provided that clause (F) shall not restrict
expenditures related to land acquisition, land development and construction costs;
(vii) release,
assign, compromise, settle or agree to settle any Legal Proceeding material to the Group Companies, taken as a whole, or their
respective properties or assets; provided, that nothing contained herein shall restrict the ability of the Group Companies
to release, assign, compromise, settle or agree to settle any Legal Proceedings so long as such settlement is solely monetary in
nature and any payments related to such settlement are made prior to the Closing;
(viii) (A)
except in the ordinary course of business consistent with past practices: (x) materially modify, amend in a manner that is adverse
to the applicable Group Company or terminate any Company Material Contract (other than the Existing Credit Agreements); or (y)
enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement;
or (B) modify or amend any material term under any of the Existing Credit Agreements or terminate or allow the termination of any
of the Existing Credit Agreements or any commitments thereunder, other than any termination or expiration of the Existing Credit
Agreements or any such commitments in accordance with the terms of the Existing Credit Agreements;
(ix) except
as required by changes in GAAP (or any interpretation thereof) or Applicable Law, make any change in accounting methods, principles
or practices;
(x) unless
required by Applicable Law, (i) make, change or revoke any Tax election, (ii) settle or compromise any Tax claim; (iii) change
(or request to change) any method of accounting for Tax purposes; (iv) file any Tax Return other than on a timely basis in the
ordinary course, or file any amended Tax Return; (v) waive or extend any statute of limitations in respect of a period within which
an assessment or reassessment of Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return);
(vi) knowingly surrender any claim for a refund of Taxes; or (vii) enter into any “closing agreement” as described
in Section 7121 of the Code (or any similar requirement of Law) with any Governmental Entity;
(xi) authorize,
recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution or winding-up;
(xii) enter
into any other transaction with any of its directors or executive officers outside the ordinary course of business or any transactions
(other than transactions solely between or among the Group Companies) which would otherwise be required to be disclosed on Schedule
3.18 of the Disclosure Schedules if such transactions were in effect as of the date hereof;
(xiii) (A)
except to the extent required by Applicable Law or by any Employee Benefit Plan disclosed to Parent, grant or announce any material
equity or equity-based awards or any other incentive awards or the material increase in the compensation and employee benefits
payable or to be provided by the Company or any Company Subsidiary to any of the employees, directors or other individual service
providers of the Company or any Company Subsidiary, unless the Company provides Parent with prior notice of and consults in good
faith with Parent on any such grant or announcement; (B) terminate (other than for cause) any employees of the Company or any Company
Subsidiary, except in the ordinary course of business consistent with past practice with respect to employees with an annual base
salary not to exceed $250,000, (C) hire any employees of the Company or any Company Subsidiary, except in the ordinary course
of business consistent with past practice, (D) except to the extent required by Applicable Law or by any Employee Benefit Plan
disclosed to Parent, pay or agree to pay any pension, retirement allowance or termination or severance pay to any employee, director
or other individual service provider of the Company or any Company Subsidiary, whether past or present, except in the ordinary
course of business consistent with past practice with respect to employees other than the Company’s chief executive officer
and chief operating officer or (E) except as required to ensure that any Employee Benefit Plan is not then out of compliance with
Applicable Law, adopt, materially amend, materially increase benefits under or terminate any Employee Benefit Plan or any collective
bargaining agreement; provided, however, that notwithstanding the forgoing, the Seller, prior to the Closing, shall assign to the
Company those general benefit plans of Seller that would constitute Employee Benefit Plans of the Company;
(xiv) communicate
with employees of the Company or any Company Subsidiary regarding the compensation, benefits or other treatment that they will
receive in connection with the Merger, unless (x) any such communications are consistent with the terms of this Agreement or prior
directives or documentation provided to the Company by Parent or (y) the Company provides Parent with prior notice of and consults
in good faith with Parent on any such communication;
(xv) take
any action or fail to take any action that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code; or
(xvi) authorize,
agree in writing or otherwise agree, commit or resolve to take any of the actions described in Sections 5.1(a)(i) through
5.1(a)(xv) above.
(b) Nothing
contained in this Agreement will give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s
or any Company Subsidiary’s operations prior to the Closing and the Group Companies’ failure to take any action prohibited
by Section 5.1(a), as a result of Parent not timely consenting to the notice required to be delivered by the Company to
Parent pursuant to Section 5.1(a), will not be a breach of Section 5.1(a).
(c) Notwithstanding
anything to the contrary in Section 5.1(a), no Group Company that is directly or indirectly wholly owned by the Company
shall be restricted from (i) paying to its sole equity holder parent Group Company dividends or distributions (as applicable) or
redemptions on account of such wholly owned equity interests, (ii) repaying or cancelling intercompany loans or advances made
by any Group Company that is directly or indirectly wholly owned by the Company or (iii) making other intercompany transfers of
property to any other Group Company that is directly or indirectly wholly owned by the Company.
5.2 Access
to Books and Records. Subject to Section 6.4, from the date hereof until the earlier of the termination of this Agreement
and the Closing Date, the Company will provide Parent and its authorized Representatives reasonably acceptable to the Company (the
“Parent’s Representatives”) with reasonable access during normal business hours, and upon reasonable notice,
to the offices, properties, senior personnel, and all financial books and records (including Tax records) of the Group Companies
in order for Parent to have the opportunity to make such investigation as it will reasonably desire in connection with the consummation
of the transactions contemplated hereby; provided, however, that in exercising access rights under this Section
5.2, Parent and the Parent’s Representatives will not be permitted to interfere unreasonably with the conduct of the
business of any Group Company. Notwithstanding anything contained herein to the contrary, no such access or examination will be
permitted to the extent that it would require any Group Company to disclose information subject to attorney-client privilege or
attorney work-product privilege, conflict with any third-party confidentiality obligations to which any Group Company is bound,
or violate any Applicable Law. Notwithstanding anything contained herein to the contrary, no access or examination provided pursuant
to this Section 5.2 will qualify or limit any representation or warranty set forth herein or the conditions to the Closing
set forth in Section 8.3(a). Parent will indemnify and hold harmless the Group Companies from and against any Losses
that may be incurred by any of them to the extent arising out of or related to the bad faith or gross negligence of Parent or the
Parent’s Representatives in the use, storage or handling by Parent or the Parent’s Representatives of (i) any personally
identifiable information relating to employees or customers of any Group Company and (ii) any other information that is protected
by Applicable Law (including privacy Laws) or Contract and to which Parent or the Parent’s Representatives are afforded access
pursuant to the terms of this Agreement. Parent acknowledges and agrees that, notwithstanding anything to the contrary contained
therein, the Confidentiality Agreement, will not terminate unless the Closing occurs, and Parent is and will continue to be bound
by the Confidentiality Agreement in accordance with its terms.
5.3 Payoff
Letters and Lien Releases. At least three (3) Business Days prior to the anticipated Closing, the Company will deliver to Parent
a customary payoff letter or letters or other payoff documentation (collectively, the “Payoff Letter”) executed
by the lenders of the Indebtedness described in clause (a) below, which letter will set forth (a) the total amount required to
be paid at the Effective Time to satisfy in full the repayment of all Indebtedness set forth on Schedule 5.3 of the Disclosure
Schedules and, if any, all prepayment penalties, premiums and breakage costs that become payable upon such repayment (the “Payoff
Amount”), (b) the lenders’ obligation to release all liens and other security securing the Indebtedness described
in clause (a) in due course and at Parent’s expense after receiving the Payoff Amount, and (c) wire transfer instructions
for paying the Payoff Amount.
5.4 Notification.
From the date hereof until the earlier of the termination of this Agreement and the Closing Date, if after the date hereof the
Company becomes aware of any fact or condition arising after the date hereof that constitutes a material breach of any representation
or warranty made by the Company in Article III or of any covenant that would cause the conditions set forth in Section 8.3(a)
or Section 8.3(b), as applicable, not to be satisfied as of the Closing Date, the Company will disclose in writing to Parent
such breach.
5.5 Consents.
The Group Companies shall use commercially reasonable efforts to obtain consents of all Persons who are party to the agreements
set forth on Schedule 3.4(a) of the Disclosure Schedules. All costs incurred in connection with obtaining such consents
shall be paid by the Company on or prior to the Closing Date or as a Company Transaction Cost on the Closing Date. Subject to Applicable
Law relating to the exchange of information, Parent shall have the right to review in advance, and to the extent practicable will
consult with the Company and the Seller on the information provided in connection with obtaining such consents and as to the form
and substance of such consents.
5.6 280G
Approval. To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and
the regulations thereunder) has the right to receive any payments or benefits that could be deemed to constitute “parachute
payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then, the Company will:
(a) no later than ten (10) days prior to the Closing Date, solicit and obtain from each such “disqualified individual”
a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G
Benefits”) so that any remaining payments and/or benefits shall not be deemed to be “excess parachute payments”
(within the meaning of Section 280G of the Code and the regulations thereunder); and (b) no later than three days prior to the
Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a vote of holders of
the equity interests of the Company entitled to vote on such matters, in the manner required under Section 280G(b)(5) of the Code
and the regulations promulgated thereunder, along with adequate disclosure intended to satisfy such requirements (including Q&A
7 of Section 1.280G-1 of such regulations), the right of any such “disqualified individual” to receive the Waived 280G
Benefits. Prior to, and in no event later than four (4) days prior to soliciting such waivers and approval, the Company shall provide
drafts of such waivers and approval materials to Parent for its reasonable review and comment, and the Company shall consider in
good faith any changes reasonably requested by Parent. No later than seven (7) days prior to soliciting the waivers, the Company
shall provide Parent with the calculations and related documentation to determine whether and to what extent the vote described
in this Section 5.6 is necessary in order to avoid the imposition of Taxes under Section 4999 of the Code. Prior to the
Closing Date, the Company shall deliver to Parent evidence that a vote of the stockholders of the Company was solicited in accordance
with the foregoing and whether the requisite number of votes of the stockholders of the Company was obtained with respect to the
Waived 280G Benefits or that the vote did not pass and the Waived 280G Benefits will not be paid or retained.
5.7 HKSE
Approval. Seller shall use, and shall direct its Affiliates and Representatives to use, reasonable best efforts to obtain the
approval of the Stock Exchange of Hong Kong Limited (“HKSE”), in connection with the Merger and Transactions,
in accordance with the applicable requirements of Rules Governing the Listing of Securities on the HKSE, and to ensure that such
approval is not revoked at or prior to the Closing. All costs incurred in connection with obtaining such approval shall be at the
Seller’s or its Affiliates’ sole cost and expense. Subject to Applicable Law relating to the exchange of information,
Parent shall have the right to review in advance, and to the extent practicable will consult with the Seller on the material written
information provided in connection with obtaining such approval.
Article
VI
COVENANTS OF PARENT AND
MERGER SUB
6.1 Conduct
of Business by Parent and Merger Sub. During the period from the date of this Agreement and continuing until the earlier of
the termination of this Agreement pursuant to its terms and the Closing, Parent shall, and shall cause its Subsidiaries to, carry
on its business in the ordinary course consistent with past practice, except to the extent that the Seller shall otherwise consent
in writing or as contemplated by this Agreement. Without limiting the generality of the foregoing, except as required or permitted
by the terms of this Agreement or as required by Applicable Law, without the prior written consent of the Company, during the period
from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and
the Closing, Parent shall not, and shall cause its Subsidiaries not to, do any of the following:
(a) declare,
set aside or pay dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect
of any capital stock (or warrant) or split, combine or reclassify any capital stock (or warrant), effect a recapitalization or
issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock or warrant,
or effect any like change in capitalization;
(b) purchase,
redeem or otherwise acquire, directly or indirectly, any equity securities of Parent or any of its Subsidiaries;
(c) grant,
issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of
capital stock or other equity securities or any securities convertible into or exchangeable for shares of capital stock or other
equity securities, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities
or any securities convertible into or exchangeable for shares of capital stock or other equity securities, or enter into other
agreements or commitments of any character obligating it to issue any such shares of capital stock or equity securities or convertible
or exchangeable securities;
(d) amend
its Charter Documents or form or establish any Subsidiary;
(e) (i)
merge, consolidate or combine with any Person; or (ii) acquire or agree to acquire by merging or consolidating with, or by purchasing
any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association
or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or enter into any joint
ventures, strategic partnerships or alliances;
(f) incur
any Indebtedness or guarantee any such Indebtedness of another Person or Persons, issue or sell any debt securities or options,
warrants, calls or other rights to acquire any debt securities of Parent, as applicable, enter into any “keep well”
or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any
of the foregoing, in each case, except for loans, advances or capital contributions pursuant to and in accordance with the terms
of agreements or legal obligations existing as of the date of this Agreement; provided, however, that Parent shall
be permitted to incur Indebtedness (which shall constitute Parent Transaction Costs) from its Affiliates and stockholders in order
to meet its reasonable capital requirements, with any such loans to be made only as reasonably required by the operation of Parent
in due course on a non-interest basis and otherwise on arm’s-length terms and conditions and to be repaid at Closing;
(g) except
as required by GAAP (or any interpretation thereof) or Applicable Law, make any change in accounting methods, principles or practices;
(h) (1)
make, change or revoke any Tax election, (2) settle or compromise any Tax claim; (3) change (or request to change) any method of
accounting for Tax purposes; (4) file any Tax Return other than on a timely basis in the ordinary course, or file any amended Tax
Return; (5) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of Taxes
may be issued (other than any extension pursuant to an extension to file any Tax Return); (6) knowingly surrender any claim for
a refund of Taxes; or (7) enter into any “closing agreement” as described in Section 7121 of the Code (or any similar
requirement of Law) with any Governmental Entity;
(i) take
any action or fail to take any action that would reasonably be expected to prevent the Merger from qualifying as a “reorganization”
within the meaning of Section 368(a) of the Code;
(j) acquire
any tangible assets, other than cash, or any material intangible asset provided that, for the avoidance of doubt, this Section
6.1(j) shall not restrict the entry into this Agreement or any Transaction Agreements or the consummation of the Transactions;
(k) liquidate,
dissolve, reorganize or otherwise wind up the business or operations of Parent or Merger Sub;
(l) make
or allow to be made any reduction or increase in the Trust Account, other than as expressly permitted by Parent’s Charter
Documents;
(m) amend
the Trust Agreement or any other agreement related to the Trust Account; or
(n) agree
in writing or otherwise agree, commit or resolve to take any of the actions described in Sections 6.1(a) through 6.1(m)
above.
6.2 Access
to Books and Records. For a period of six (6) years from and after the Closing Date, Parent will, and will cause the Surviving
Corporation to, provide the Seller and its authorized Representatives with access (for the purpose of examining and copying) in
connection with general business purposes, during normal business hours, upon reasonable notice, to the books and records of the
Group Companies with respect to periods or occurrences prior to or on the Closing Date, including with respect to any Tax audits,
Tax Returns, insurance claims, governmental investigations, legal compliance, financial statement preparation or any other matter.
Unless otherwise consented to in writing by the Seller, Parent will not, and will not permit the Surviving Corporation or its Subsidiaries
to, for a period of six years following the Closing Date, destroy, alter or otherwise dispose of any of the material books and
records of any Group Company for any period prior to the Closing Date without first giving reasonable prior notice to the Seller
and offering to surrender to the Seller such books and records or any portion thereof that Parent or the Surviving Corporation
may intend to destroy, alter or dispose of.
6.3 Employee
Matters. At the Closing, Seller shall contribute, convey, transfer and assign to the Company all of Seller’s rights,
duties and obligations under the Employment Agreements and the Company shall assume and agree to be bound by, the Employment Agreements,
pursuant to and in accordance with the terms and conditions set forth therein.
6.4 Contact
with Customers and Suppliers. Parent and Merger Sub each hereby agrees that from the date hereof until the Closing Date or
the earlier termination of this Agreement, it will not (and will not permit any of its Representatives or Affiliates to) contact
or communicate with the employees, customers, providers, service providers or suppliers of any Group Company without the prior
consultation with and approval of an executive officer of the Company (such approval not to be unreasonably withheld, conditioned
or delayed); provided, however, that neither this Section 6.4 nor anything else herein will prohibit any contacts
by Parent or the Parent’s Representatives or Affiliates with the customers, providers, service providers and suppliers of
any Group Company in the ordinary course of business and unrelated to the transactions contemplated hereby.
6.5 Notification.
From the date hereof until the earlier of the termination of this Agreement and the Closing Date, if after the date hereof Parent
has Knowledge of any fact or condition that constitutes a material breach of any representation or warranty made in Article
IV or any covenant that would cause the conditions set forth in Section 8.2(a) or Section 8.2(b), as applicable,
not to be satisfied as of the Closing Date, Parent will disclose in writing to the Company such breach.
6.6 Warrant
Holder Approval. Prior to the Effective Time, if necessary to effect the Warrant Amendment, Parent will take commercially reasonable
efforts to seek approval of the holders of at least 65% of the Public Warrants of the Warrant Amendment (the “Warrant
Holder Approval”).
Article
VII
ADDITIONAL COVENANTS
7.1 Proxy
Statement.
(a) As
soon as reasonably practicable following the execution and delivery of this Agreement, Parent shall, in accordance with this Section
7.1, prepare and file with the SEC, in preliminary form, a proxy statement in connection with the Transactions (as amended
or supplemented, the “Proxy Statement”) to be sent to the stockholders and warrant holders of Parent relating
to the Special Meeting and, if necessary for purposes of obtaining the Warrant Holder Approval, the Warrant Holder Meeting, for
the purpose of, among other things: (i) providing Parent’s stockholders with the opportunity to redeem shares of Parent
Class A Stock (the “Parent Stockholder Redemption”); and (ii) soliciting proxies from holders of Parent Class
A Stock to vote at the Special Meeting in favor of: (A) the adoption of this Agreement and approval of the Transactions; (B) the
issuance of shares of Parent Class A Stock in connection with Section 2.6; (C) the amendment and restatement of the Parent
Organizational Documents in the form of the Parent A&R Charter attached hereto as Exhibit A (together, with those proposals
set forth in Section 7.1(a)(ii)(A) and Section 7.1(a)(ii)(B), the “Necessary Stockholder Matters”);
(D) the election of Scott Reed and Gregory P. Wilson as Class II directors of Parent; and (E) any other proposals the Parties deem
necessary or desirable to consummate the Transactions (collectively, the “Parent Stockholder Matters”); and
(iii) if necessary for purposes of obtaining the Warrant Holder Approval, soliciting proxies from the holders of the Public
Warrants vote at the Warrant Holder Meeting in favor of the approval of the Warrant Amendment. Without the prior written consent
of the Seller and the Company (each such consent not to be unreasonably withheld, conditioned or delayed), the Parent Stockholder
Matters shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by Parent’s stockholders
at the Special Meeting. The Proxy Statement will comply as to form and substance in all material respects with the applicable requirements
of the Exchange Act and the rules and regulations thereunder. Parent shall file the definitive Proxy Statement with the SEC and
cause the Proxy Statement to be mailed to its stockholders and, if applicable, warrant holders of record, as of the record date
to be established by the board of directors of Parent, as soon as reasonably practicable following the earlier to occur of: (y)
in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a)
under the Exchange Act; or (y) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written
notification of the completion of the review by the SEC (such earlier date, the “Proxy Clearance Date”).
(b) Prior
to filing with the SEC, Parent will make available to the Company drafts of the Proxy Statement and any other documents to be filed
with the SEC, both preliminary and final, and any amendment or supplement to the Proxy Statement or such other document and will
provide the Company with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. Parent
shall not file any such documents with the SEC without the prior written consent of the Company (such consent not to be unreasonably
withheld, conditioned or delayed). Parent will advise the Company promptly after it receives notice thereof, of: (i) the time when
the Proxy Statement has been filed; (ii) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration
of the waiting period in Rule 14a-6(a) under the Exchange Act; (iii) in the event the preliminary Proxy Statement is reviewed by
the SEC, receipt of oral or written notification of the completion of the review by the SEC; (iv) the filing of any supplement
or amendment to the Proxy Statement; (v) the issuance of any stop order by the SEC; (vi) any request by the SEC for amendment of
the Proxy Statement; (vii) any comments from the SEC relating to the Proxy Statement and responses thereto; and (viii) requests
by the SEC for additional information. Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable
to any SEC comments on the Proxy Statement and shall use its reasonable best efforts to have the Proxy Statement cleared by the
SEC under the Exchange Act as promptly as practicable; provided, that prior to responding to any requests or comments from
the SEC, Parent will make available to the Company drafts of any such response and provide the Company with a reasonable opportunity
to comment on such drafts.
(c) If,
at any time prior to the Special Meeting and, if applicable, the Warrant Holder Meeting, there shall be discovered any information
that should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any
misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, Parent shall promptly file an amendment or supplement to the Proxy Statement containing
such information. If, at any time prior to the Closing, the Company discovers any information, event or circumstance that should
be set forth in an amendment or a supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement
of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the Company shall promptly notify Parent so that an appropriate amendment or supplement can
be promptly filed with the SEC and, to the extent required under Applicable Law, disseminated to all stockholders of Parent.
(d) Parent
shall make all necessary filings, if any, with respect to the Transactions under the Securities Act, the Exchange Act and applicable
“blue sky” laws, and any rules and regulations thereunder. The Company agrees to promptly provide Parent with all information
concerning the business, management, operations and financial condition of the Company and the Company Subsidiaries, in each case,
reasonably requested by Parent for inclusion in the Proxy Statement. The Company shall cause the officers and employees of the
Company and the Company Subsidiaries to be reasonably available to Parent and its counsel in connection with the drafting of the
Proxy Statement and responding in a timely manner to comments on the Proxy Statement from the SEC.
7.2 Meetings;
Recommendations of the Parent Board.
(a) Parent
shall, as soon as reasonably practicable following the Proxy Clearance Date, establish a record date (which date shall be mutually
agreed with the Seller, who shall not unreasonably delay, withhold or condition such agreement) for, duly call and give notice
of, the Special Meeting and, if applicable, the Warrant Holder Meeting. Parent shall convene and hold a meeting of Parent’s
stockholders (the “Special Meeting”), for the purpose of obtaining the approval of the Parent Stockholder Matters,
and, if necessary for purposes of obtaining the Warrant Holder Approval, convene and hold a meeting of the holders of the Public
Warrants (the “Warrant Holder Meeting”), for the purpose of obtaining the approval of the Warrant Amendment,
which meeting(s) shall be held not more than thirty (30) days after the date on which Parent mails the Proxy Statement to its stockholders
and warrant holders. To the extent practicable, the Special Meeting and the Warrant Holder Meeting shall be held on the same day.
(b) Parent
shall use its reasonable best efforts to obtain the approval of the Parent Stockholder Matters at the Special Meeting and approval
of the Warrant Amendment at the Warrant Holder Meeting, including by soliciting proxies as promptly as practicable in accordance
with Applicable Law for the purpose of seeking the approval of the Parent Stockholder Matters and the Warrant Amendment.
(c) Parent
shall include the Parent Recommendation in the Proxy Statement. The board of directors of Parent shall not (and no committee or
subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify
or modify, the Parent Recommendation (a “Change in Recommendation”); provided, that the board of directors
may make a Change in Recommendation if it determines in good faith, after consultation with its outside legal counsel, that a failure
to make a Change in Recommendation would reasonably be expected to constitute a breach by Parent’s board of directors of
its fiduciary obligations to Parent’s stockholders under Applicable Law.
(d) Parent
agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the Special Meeting for
the purpose of seeking approval of the Parent Stockholder Matters shall not be affected by any Change in Recommendation, and Parent
agrees to establish a record date for, duly call, give notice of, convene and hold the Special Meeting and submit for the approval
of its stockholders the matters contemplated by the Proxy Statement, regardless of whether or not there shall have occurred any
Change in Recommendation.
(e) Notwithstanding
anything to the contrary contained in this Agreement, Parent shall be entitled to postpone or adjourn the Special Meeting: (i)
to ensure that any supplement or amendment to the Proxy Statement that the board of directors of Parent has determined in good
faith is required by Applicable Law is disclosed to Parent’s stockholders and for such supplement or amendment to be promptly
disseminated to Parent’s stockholders prior to the Special Meeting; (ii) if, as of the time for which the Special Meeting
is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Parent Class A Stock represented
(either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting;
or (iii) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the Parent Stockholder
Matters; provided, that in the event of a postponement or adjournment pursuant to clauses (i) or (ii) above, the Special
Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
7.3 HSR
Act. As promptly as practicable after the date of this Agreement and in any event within ten (10) Business Days, Parent and
the Company shall, if required by the HSR Act, each prepare and file the notification required of it under the HSR Act in connection
with the Transactions and shall promptly and in good faith respond to all information requested of it by the U.S. Federal Trade
Commission and U.S. Department of Justice in connection with such notification and otherwise cooperate in good faith with each
other and such Governmental Entities. Each Party will promptly furnish to the other such information and assistance as the other
may reasonably request in connection with its preparation of any filing or submission that is necessary under the HSR Act and will
take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods as soon
as practicable. Each Party will promptly provide the other with copies of all written communications (and memoranda setting forth
the substance of all oral communications) between each of them, any of their Affiliates and their respective agents, representatives
and advisors, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement or the Transactions.
Without limiting the foregoing, Parent and the Company shall: (a) promptly inform the other of any communication to or from
the U.S. Federal Trade Commission, the U.S. Department of Justice or any other Governmental Entity regarding the Transactions;
(b) permit each other to review in advance any proposed written communication to any such Governmental Entity and incorporate
reasonable comments thereto; (c) give the other prompt written notice of the commencement of any Legal Proceeding with respect
to such transactions; (d) not agree to participate in any substantive meeting or discussion with any such Governmental Entity
in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably
practicable, it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other
Party the opportunity to attend; (e) keep the other reasonably informed as to the status of any such Legal Proceeding; and
(f) promptly furnish each other with copies of all correspondence, filings (except for filings made under the HSR Act) and
written communications between such Party and their Affiliates and their respective agents, representatives and advisors, on one
hand, and any such Governmental Entity, on the other hand, in each case, with respect to this Agreement and the Transactions. Parent,
on the one hand, and the Company, on the other hand, shall each pay 50% of any filing fees required by Governmental Entities, including
with respect to any registrations, declarations and filings required in connection with the execution, delivery and performance
of this Agreement, the performance of the obligations hereunder and the consummation of the Transactions, including filing fees
in connection with filings under the HSR Act.
7.4 Other
Filings; Press Release; Communications Plan.
(a) As
promptly as practicable after execution of this Agreement, Parent will prepare and file a Current Report on Form 8-K pursuant
to the Exchange Act to report the execution of this Agreement, the form and substance of which shall be approved in advance in
writing by the Company.
(b) Promptly
after the execution of this Agreement, Parent and the Company shall also issue a joint press release announcing the execution of
this Agreement.
(c) Parent
shall prepare a draft Current Report on Form 8-K announcing the Closing, together with, or incorporating by reference, the
financial statements prepared by the Company and its accountant, and such other information that may be required to be disclosed
with respect to the Transactions in any report or form to be filed with the SEC (“Closing Form 8-K”), the form
and substance of which shall be approved in advance in writing by the Seller. Prior to Closing, Parent and the Company shall prepare
a joint press release announcing the consummation of the Transactions hereunder (“Closing Press Release”). Concurrently
with the Closing, Parent shall issue the Closing Press Release. Concurrently with the Closing, or as soon as practicable thereafter,
Parent shall file the Closing Form 8-K with the SEC.
(d) Parent
and the Company shall reasonably cooperate to create and implement a communications plan regarding the Transactions (the “Communications
Plan”) promptly following the date hereof. Notwithstanding the foregoing, none of the Parties will make any public announcement
or issue any public communication regarding this Agreement, the other Transaction Agreements or the Transactions or any matter
related to the foregoing, without the prior written consent of the Seller, in the case of a public announcement by Parent, or Parent,
in the case of a public announcement by the Seller or the Company (such consents, in either case, not to be unreasonably withheld,
conditioned or delayed), except: (i) if such announcement or other communication is required by Applicable Law, in which case the
disclosing Party shall, to the extent permitted by Applicable Law, first allow such other Parties to review such announcement or
communication and have the opportunity to comment thereon and the disclosing Party shall consider such comments in good faith;
(ii) in the case of the Company or the Seller, Parent and their respective Affiliates, if such announcement or other communication
is made in connection with fundraising or other investment related activities and is made to such Person’s direct and indirect
investors or potential investors or financing sources subject to an obligation of confidentiality; (iii) to the extent provided
for in the Communications Plan, internal announcements to employees of the Group Companies; (iv) 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 Section 7.4 or this Section 7.4(d); and (v) announcements and communications
to Governmental Entities in connection with registrations, declarations and filings relating to the Transactions required to be
made under this Agreement.
(e) Notwithstanding
the foregoing, any Affiliate of Seller shall be permitted to make any public announcement or issue any public communication regarding
this Agreement, the other Transaction Agreements or the Transactions without the consent of Parent or Merger Sub, if (i) such Affiliate
is advised by outside legal counsel in writing that such disclosure is required to be made under any listing rules or Applicable
Law and (ii) Seller gives Parent written notice of such announcement or communication as far in advance thereof as practicable
(and in any case at least one (1) Business Day in advance thereof).
7.5 Confidentiality.
Parent and the Company acknowledge that they are parties to the Confidentiality Agreement, the terms of which are incorporated
herein by reference. Following Closing, the Confidentiality Agreement shall be superseded in its entirety by the provisions of
this Agreement; provided, however, that if for any reason this Agreement is terminated prior to the Closing, the
Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. Beginning on the date
hereof and ending on the second anniversary of this Agreement, each Party agrees to maintain in confidence any non-public information
received from the other Parties, and to use such non-public information only for purposes of consummating the Transactions. Such
confidentiality obligations will not apply to: (i) information which was known to one Party or its agents or representatives
prior to receipt from the Company or the Seller, on the one hand, or Parent or Merger Sub, on the other hand, as applicable; (ii) information
which is or becomes generally known to the public without breach of this Agreement or an existing obligation of confidentiality;
(iii) information acquired by a Party or their respective agents from a third party who was not bound to an obligation of
confidentiality; (iv) information developed by such Party independently without any reliance on the non-public information received
from any other Party; (v) disclosure required by Applicable Law or stock exchange rule; or (vi) disclosure consented
to in writing by Parent or Merger Sub (in the case of the Seller and, prior to the Closing, the Company) or the Seller (in the
case of Parent or Merger Sub and, following the Closing, the Company).
7.6 Reasonable
Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other Transactions, including using reasonable best efforts to accomplish the following:
(a) the taking of all commercially reasonable acts necessary to cause the conditions precedent set forth in Article VIII
to be satisfied; (b) the obtaining of all necessary actions, waivers, consents, approvals, orders and authorizations from
Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations
and filings with Governmental Entities, if any) and the taking of all commercially reasonable steps as may be necessary to avoid
any Legal Proceeding; (c) the obtaining of all consents, approvals or waivers from third parties required as a result of the
Transactions and any other consents referred to on Schedule 3.4(b) of the Disclosure Schedules (it being understood,
for the avoidance of doubt, that nothing herein shall require the Company in connection therewith to incur any liability or expense
or subject itself, any Company Subsidiaries or the business of the foregoing to any imposition of any limitation on the ability
of any of them to conduct their business or to own or exercise control of their assets or properties); (d) the defending of
any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the
consummation of the Transactions, including opposing and seeking to vacate or reverse any appealable stay or preliminary injunction,
or permanent injunction entered by any court or other Governmental Entity; and (e) the execution or delivery of any additional
instruments reasonably necessary to consummate, and to fully carry out the purposes of, the Transactions, which shall include,
on the part of Parent, sending a termination letter to Continental substantially in the applicable form attached to the Trust Agreement
(the “Trust Termination Letter”). Notwithstanding anything herein to the contrary, nothing in this Agreement
shall be deemed to require Parent or the Company to agree to any divestiture by itself or any of its Affiliates of shares of capital
stock or of any business, assets or property, the imposition of any limitation on the ability of any of them to conduct their business
or to own or exercise control of their respective assets, properties and capital stock, or the incurrence of any liability or expense.
7.7 No
Claim Against Trust Account. The Company acknowledges and represents that (i) it has read the publicly-filed prospectus of
Parent for and in partial consideration of Parent entering into this Agreement, the receipt and sufficiency of which are hereby
acknowledged, and that Parent has established the Trust Account for the benefit of the public stockholders and that, except for
a portion of the interest earned on the amounts held in the Trust Account, Parent may disburse monies from the Trust Account only:
(a) to the public stockholders in the event of the conversion of their shares upon consummation of a business combination or amendment
to Parent’s certificate of incorporation relating to pre-business combination activity, (b) to the public stockholders in
connection with Parent’s liquidation in the event Parent’s is unable to consummate a business combination within the
required time period or (c) to Parent concurrently with, or after it consummates a business combination, and (ii) notwithstanding
anything in this Agreement to the contrary, it agrees that it does not have any right, title, interest or claim of any kind in
or to any monies of the Trust Account (a “Trust Claim”) and waives any Trust Claim it may have in the future
as a result of, or arising out of, any negotiations, contracts or agreements with Parent and will not seek recourse against the
Trust Account for any reason whatsoever. Parent acknowledges and agrees that (A) the foregoing shall not limit or prohibit any
claims that the Company may have in the future pursuant to this Agreement for legal relief against monies or other assets of Parent
held outside the Trust Account or for specific performance or other equitable relief in connection with the Transactions or for
Fraud in the making of the representations and warranties in Article IV, and (B) nothing herein shall serve to limit or
prohibit any claims that the Company or the Seller may have in the future pursuant to this Agreement against Parent’s assets
or funds that are not held in the Trust Account (including any funds released from the Trust Account following the consummation
of a Business Combination by Parent).
7.8 Disclosure
of Certain Matters. Each of Parent, Merger Sub, the Company and the Seller will promptly provide the other Parties with prompt
written notice of any event, development or condition of which they have Knowledge that: (a) is reasonably likely to cause
any of the conditions set forth in Article VIII not to be satisfied; or (b) would require any amendment or supplement
to the Proxy Statement.
7.9 Securities
Listing. Parent will use its reasonable best efforts to cause the shares of Parent Class A Stock issued in connection with
the Transactions to be approved for listing on Nasdaq at Closing. During the period from the date hereof until the Closing, Parent
shall use its reasonable best efforts to keep the Parent Class A Stock, Parent Units, and Parent Warrants listed for trading on
Nasdaq. After the Closing, Parent shall use commercially reasonable efforts to continue the listing for trading of the Parent Class
A Stock and Parent Warrants on Nasdaq.
7.10 No
Solicitation.
(a) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its
terms and the Closing, the Company shall not, and shall cause the Company Subsidiaries and the Seller not to, and shall direct
its employees, agents, officers, directors, representatives and advisors (collectively, “Representatives”) not
to, directly or indirectly: (i) solicit, initiate, participate in, enter into or continue discussions, negotiations or transactions
with, or encourage or respond to any inquiries or proposals by, or provide any information to or otherwise cooperate in any way
with, any Person (other than Parent and its agents, representatives, advisors) concerning any merger, acquisition, consolidation,
sale of ownership interests and/or assets of the Company, recapitalization or similar transaction (each, a “Company Business
Combination”); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or
negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Company Business Combination;
or (iii) commence, continue or renew any due diligence investigation regarding a Company Business Combination. In addition,
the Company shall, and shall cause the Company Subsidiaries and the Seller to, and shall cause their respective Representatives
to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Company Business Combination.
(b) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its
terms and the Closing, Parent and Merger Sub shall not, and shall direct their respective Representatives not to, directly or indirectly:
(i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or
proposals by, or provide any information to, any Person (other than the Company, the Seller and their respective Representatives)
concerning any merger, purchase of ownership interests or assets of Parent, recapitalization or similar business combination transaction
(each, a “Parent Business Combination”); (ii) enter into any agreement regarding, continue or otherwise
participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to
lead to a Parent Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Parent
Business Combination. Parent and Merger Sub shall, and shall cause their respective Representatives to, immediately cease any and
all existing discussions or negotiations with any Person with respect to any Parent Business Combination.
(c) Each
Party shall promptly (and in no event later than 24 hours after becoming aware of such inquiry, proposal, offer or submission)
notify the other Parties (and in the case of Parent’s receipt of a Parent Business Combination proposal, Parent shall also
provide notice to the Seller) if it or, to its Knowledge, any of its or its Representatives receives any inquiry, proposal, offer
or submission with respect to a Company Business Combination or Parent Business Combination, as applicable (including the identity
of the Person making such inquiry or submitting such proposal, offer or submission), after the execution and delivery of this Agreement.
If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination
or Parent Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal,
offer or submission (and in the case of Parent’s receipt, Parent shall also provide copies to the Seller).
7.11 Trust
Account. Upon satisfaction or waiver of the conditions set forth in Article VIII and provision of notice thereof to
Continental (which notice Parent shall provide to Continental in accordance with the terms of the Trust Agreement): (a) in
accordance with and pursuant to the Trust Agreement, at the Closing, Parent: (i) shall cause the documents, opinions and notices
required to be delivered to Continental pursuant to the Trust Agreement to be so delivered, including providing Continental with
the Trust Termination Letter; and (ii) shall use its reasonable best efforts to cause Continental to, and Continental shall
thereupon be obligated to, distribute the Trust Account as directed in the Trust Termination Letter.
7.12 Tax
Matters.
(a) The
Parties to this Agreement intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Section
1.368-2(g) of the Treasury Regulations and Section 354(a)(1) of the Code and that, for U.S. federal income tax purposes, the Merger
shall qualify as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations thereunder.
Each of the Parties to this Agreement shall consider and negotiate in good faith such amendments to this Agreement as may be reasonably
required to cause the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code (it
being understood that no party will be required to agree to any such amendment).
(b) The
parties to this Agreement agree to treat the Merger for all Tax purposes in a manner consistent with the treatment described in
this Section 7.12 (including, without limitation and for the avoidance of doubt, by filing all Tax Returns in a manner consistent
with such treatment) unless otherwise required by a taxing authority in connection with a good faith resolution of a Legal Proceeding.
Prior to or following the Effective Time, none of Parties shall, and they shall not permit any of their respective Affiliates to,
(i) take (or fail to take) any action which action (or failure to act) could reasonably be expected to cause the Merger to fail
to qualify as a reorganization within the meaning of Section 368(a) of the Code, unless required to do so by Applicable Law.
(c) The
Parent shall be responsible for and shall pay all local, non-U.S. or other excise, sales, use, value-added, transfer (including
real property transfer), stamp, documentary, filing, recordation and other similar taxes and fees that may be imposed or assessed
as a result of the execution of, and the transactions contemplated by, this Agreement, together with any inflation adjustment,
interest, additions or penalties with respect thereto, including any inflation adjustment or interest with respect to such additions
or penalties (“Transfer Taxes”). The Parent shall, at its own expense, file all necessary Tax Returns and other
documentation with respect to all such Transfer Taxes.
7.13 Qualification
as an Emerging Growth Company. Parent shall, at all times during the period from the date hereof until the Closing: (a) take
all actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our
Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that would cause Parent to not
qualify as an “emerging growth company” within the meaning of the JOBS Act.
7.14 Registration
Rights.
(a) Following
the Closing Date, Parent shall, as promptly as reasonably practicable, (i) file with the SEC (A) a resale shelf registration statement
under the Securities Act on Form S-3 (or any successor short form registration involving a similar amount of disclosure) or if
then ineligible to use any such form, then any other available form of registration statement, or (B) pursuant to Rule 424(b) under
the Securities Act, a prospectus supplement that shall be deemed to be part of an existing shelf registration statement in accordance
with Rule 430B under the Securities Act, in each case for a public offering of the shares of Parent Class A Stock received by the
Seller as Merger Consideration (the “Registrable Stock”) to be made on a continuous basis pursuant to Rule
415 under the Securities Act (the “Registration Statement”) and, in the case of clause (A) above, use commercially
reasonable efforts to cause the Registration Statement to become effective within 180 days after the Closing Date, (ii) use commercially
reasonable efforts to cause the Registration Statement to remain effective until the earlier of (1) the date when all Registrable
Stock covered by the Registration Statement has been sold or (2) the date when all Registrable Stock covered by the Registration
Statement first becomes eligible for sale pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions
on transfer thereunder, and (iii) use its reasonable best efforts to prepare and file with the SEC any required amendments to the
Registration Statement and the prospectus (including any prospectus supplement) used in connection therewith (“Shelf Prospectus”).
Notwithstanding the foregoing, Parent shall have no obligation to register or to maintain the effectiveness of the Registration
Statement after all Registrable Stock covered by the Registration Statement first becomes eligible for sale pursuant to Rule 144
under the Securities Act without volume limitation or other restrictions on transfer thereunder. In the event that the filing deadline
contemplated by this Section 7.14(a) shall occur during a trading “blackout” period under Parent’s securities
trading policies, then Parent shall not be required to file the Registration Statement contemplated by this Section 7.14(a)
until such “blackout” period is no longer applicable. In addition, Parent shall not be required to file the Registration
Statement contemplated by this Section 7.14(a) if Parent, in its reasonable good faith judgment (after consultation with
its legal advisors), has determined that the offer and sale or other disposition of Registrable Stock pursuant to the Registration
Statement would require public disclosure by Parent of material nonpublic information that Parent is not otherwise obligated to
disclose.
(b) (i)
Upon the issuance by the SEC of a stop order suspending the effectiveness of the Registration Statement or the initiation of any
Legal Proceeding with respect to the Registration Statement under Section 8(d) or 8(e) of the Securities Act, or (ii) if the Registration
Statement or Shelf Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading (including, in any such case, as a result of the
non-availability of financial statements), (iii) Parent, in its reasonable good faith judgment, has determined that the offer and
sale or other disposition of Registrable Stock would require public disclosure by Parent of material nonpublic information that
is not included in the Registration Statement and that immediate disclosure of such information would be materially detrimental
to Parent, or (iv) upon the occurrence or existence of any other development, event, fact, situation or circumstance relating to
Parent that, in the judgment of a majority of the board of directors of Parent, makes it appropriate to suspend the availability
of the Registration Statement and/or Shelf Prospectus, (A)(1) in the case of clause (ii) above, and subject to clauses (iii) and
(iv) above, Parent shall as promptly as reasonably practicable prepare and file a post-effective amendment to such Registration
Statement or a supplement to the related Shelf Prospectus, as applicable, so that such Registration Statement or Shelf Prospectus,
as applicable, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and subject to clause (iii) above, in the case of a post-effective
amendment to the Registration Statement, use commercially reasonable efforts to cause it to become effective as promptly as reasonably
practicable, and (2) in the case of clause (i) above, use commercially reasonable efforts to cause such stop order to be lifted,
and (B) Parent shall give notice to the Seller that the availability of such Registration Statement or Shelf Prospectus is suspended
(a “Deferral Notice”) and, upon receipt of any Deferral Notice, the Seller agrees that it shall not sell any
Registrable Stock pursuant to the Registration Statement or Shelf Prospectus until the Seller is notified by Parent of the effectiveness
of the post-effective amendment to the Registration Statement provided for in clause (A) above, or until it is notified in writing
by Parent that the Shelf Prospectus may be used. In connection with any development, event, fact, situation or circumstance covered
by clause (iii) above, Parent shall be entitled to exercise its rights pursuant to this Section 7.14(b) to suspend the availability
of the Registration Statement and Shelf Prospectus for no more than an aggregate of 120 days in the aggregate in any one year period.
(c) In
connection with the performance of its obligations under this Section 7.14, Parent shall pay all registration fees
under the Securities Act, all printing expenses and all fees and disbursements of Parent’s legal counsel, Parent’s
independent registered public accounting firm and any other persons retained by Parent, and any other expenses incurred by Parent.
The Seller shall pay any discounts, commissions and transfer Taxes, if any, attributable to the sale of Registrable Stock and any
other expenses (including the fees and expenses of other advisors and agents, if any) incurred by it; provided, however,
that Parent shall pay the reasonable and documented out-of-pocket fees and expenses of one (1) legal counsel to represent the interests
of the Seller under this Section 7.14.
(d) The
Seller (i) shall furnish to Parent such information as is required to be included under the Securities Act in the Registration
Statement (or any amendment or supplement thereto) or any Shelf Prospectus, (ii) shall comply with the prospectus delivery requirements
under the Securities Act in connection with the sale or other distribution of Registrable Stock pursuant to the Registration Statement,
(iii) shall indemnify Parent, each officer and director of Parent, and each person, if any, who controls Parent within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each of the foregoing, an “indemnified party”
for purposes of this Section 7.14(d)) against any and all loss, liability, claim and damage arising out of any untrue statement
of a material fact contained in the Registration Statement or any Shelf Prospectus (or any amendment thereto) or the omission therefrom
of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, but only with respect to untrue statements or omissions made in the Registration Statement
or any Shelf Prospectus (or any amendment thereto) in reliance upon and in conformity with information furnished in writing to
Parent by or on behalf of the Seller for use in the Registration Statement or any Shelf Prospectus (or any amendment thereto),
and (iv) shall report to Parent all sales or other distributions of Registrable Stock pursuant to the Registration Statement. If
the indemnification provided for in this Section 7.14(d) from the Seller is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages or liabilities referred to in this Section 7.14(d), the Seller, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses, in such proportion as is appropriate to reflect the relative fault of the Seller and indemnified
party in connection with the actions which resulted in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. 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. The obligations
of Parent and the Seller under this Section 7.14(d) shall survive the completion of any offering or sale of Registrable
Stock pursuant to any Registration Statement.
(e) Following
the Closing Date, if Parent proposes to file a registration statement with respect to equity securities of Parent (including without
limitation pursuant to a Demand Registration (as defined in that certain Registration Rights Agreement, by and among Parent, Sponsor,
and certain other holders thereto, dated June 19, 2018 (the “Existing RRA”)), but excluding any registration
statement on Form S-8 or S-4 or comparable successor forms or a registration statement relating to a dividend reinvestment plan),
which is available for use for the sale of Parent Class A Stock under the Securities Act, then Parent shall give written notice
of such proposed filing to the Seller at least ten (10) Business Days before the anticipated filing date of such registration statement,
and such notice shall offer the Seller the opportunity to include in such registration statement Parent Class A Stock then owned
by the Seller, as the Seller may request in writing within three (3) days after receipt of Parent’s notice (which request
shall specify the number of Parent Class A Stock to be included in such registration statement and the intended method of disposition).
For the avoidance of doubt, the Seller acknowledges that the inclusion of any Parent Class A Stock held by Seller in any such registration
statement shall be subject to the terms and conditions of the Existing RRA.
7.15 Post-Closing
Directors of the Parent. At the Effective Time, the board of directors of the Parent shall be comprised of nine (9) directors,
at least three (3) of whom shall meet Nasdaq director independence requirements. The Company shall designate seven (7) directors,
two (2) of whom shall meet Nasdaq director independence requirements (the “Company Board Designees”). Parent
shall designate two (2) directors, at least one (1) of whom shall meet Nasdaq director independence requirements; provided,
that (i) Parent shall have no designation right if Elias Farhat and Scott Reed continue as directors of Parent and (ii) the designation
of directors by Parent shall be subject to the Company’s prior written consent. Prior to the Effective Time, Parent shall
take all necessary corporate action so that effective as of the Effective Time (x) Scott Reed is (A) duly appointed as a director
of the Parent or (B) continues as a director of the Parent (if duly elected as a director of Parent pursuant to the Special Meeting),
(y) Elias Farhat continues as a director of the Parent, and (z) each of the Company Board Designees is duly appointed as a director
of the Parent.
7.16 Release.
(a) Effective
upon and following the Closing, Parent and Merger Sub, on their own behalf and on behalf of its respective Affiliates and Representatives,
generally, irrevocably, unconditionally and completely releases and forever discharges the Seller, each of its Affiliates and each
of its and its Affiliates’ respective Related Parties, and each of their respective successors and assigns and each of their
respective Related Parties other than, in each case, the Group Companies (collectively, the “Company Stockholder Released
Parties”) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action
of every kind and nature, whether known or unknown (collectively, “Claims”), arising from any matter concerning
any Group Company occurring prior to the Closing Date (other than as contemplated by this Agreement), including for controlling
equityholder liability or breach of any fiduciary duty relating to any pre-Closing actions or failure to act by the Company Stockholder
Released Parties; provided, however, that nothing in this Section 7.16 shall release any Company Stockholder
Released Parties from: (i) their obligations under this Agreement, the other Transaction Agreements or any other agreement between
any Company Stockholder Released Party, on the one hand, and Parent, Merger Sub or any of their respective Affiliates and Representatives
(other than, in each case, the Group Companies), on the other hand, including with respect to any breach of this Agreement, the
other Transaction Agreements or such other agreements, (ii) as applicable, any Claims or breaches of fiduciary duty arising out
of such Company Stockholder Released Party’s employment by any Group Company, (iii) any Claims arising out of Fraud, or (iv)
any Claims which cannot be released as a matter of law.
(b) Effective
upon and following the Closing, the Seller, on its own behalf and on behalf of each of its Affiliates and Representatives, generally,
irrevocably, unconditionally and completely releases and forever discharges Parent and Merger Sub, and each Group Company, each
of their respective Affiliates and each of their and their respective Affiliates’ respective Related Parties, and each of
their respective successors and assigns and each of their respective Related Parties (collectively, the “Parent Released
Parties”) from all Claims arising from any matter concerning any Group Company occurring prior to the Closing Date (other
than as contemplated by this Agreement); provided, however, that nothing in this Section 7.16 shall release
the Parent Released Parties from their obligations under this Agreement, the other Transaction Agreements or any other agreement
between any Parent Released Party, on the one hand, and the Seller or any of its Affiliates or Representatives, on the other hand,
including with respect to any breach of this Agreement, the other Transaction Agreements or such other agreements, or from any
Claims which cannot be released as a matter of law.
Article
VIII
CONDITIONS TO THE TRANSACTION
8.1 Conditions
to Obligations of Each Party’s Obligations. The respective obligations of each Party to this Agreement to effect the
Merger and the other Transactions shall be subject to the satisfaction (or written waiver, in whole or in part, to the extent such
conditions can be waived under this Agreement and Applicable Law) at or prior to the Closing of the following conditions:
(a) At
the Special Meeting (including any adjournments thereof), the Necessary Stockholder Matters shall have been duly adopted by the
stockholders of Parent in accordance with the DGCL, the Parent Organizational Documents and the Nasdaq rules and regulations.
(b) Parent
shall have at least $5,000,001 of net tangible assets following the exercise by the holders of Parent Class A Stock issued in Parent’s
initial public offering of securities and outstanding immediately before the Closing of their right to convert their Parent Class
A Stock held by them into a pro rata share of the Trust Account in accordance with Parent Organizational Documents.
(c) All
applicable waiting periods (and any extensions thereof) under the HSR Act will have expired or otherwise been terminated, and the
Parties will have received or have been deemed to have received all other mandatory pre-closing authorizations, consents, clearances,
waivers and approvals of all Governmental Entities required in connection with the execution, delivery and performance of this
Agreement and the Transactions.
(d) No
provision of any Applicable Law prohibiting, enjoining, restricting or making illegal the consummation of the Transactions shall
be in effect and no temporary, preliminary or permanent restraining Order enjoining, restricting or making illegal the consummation
of the Transactions will be in effect or shall be threatened in writing by a Governmental Entity.
(e) The
shares of Parent Class A Stock to be issued in connection with the Closing shall be approved for listing upon the Closing on Nasdaq,
including, to the Knowledge of Parent, satisfaction of the requirement to have a sufficient number of round lot holders.
(f) Landsea
Properties has obtained the approval of the HKSE in connection with the Merger and Transactions, in accordance with the applicable
requirements of Rules Governing the Listing of Securities on the HKSE and such approval has not been revoked at or prior to the
Closing.
8.2 Additional
Conditions to Obligations of the Company and the Seller. The obligations of the Seller and the Company to consummate and effect
the Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following
conditions, any of which may be waived, in writing, exclusively by the Seller and the Company:
(a) The
Fundamental Representations of Parent shall be true and correct in all material respects (without giving effect to any limitation
as to “materiality” or “Parent Material Adverse Effect” or any similar limitation contain herein) on and
as of the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date (except to the
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and
warranty shall be true and correct as of such earlier date); and all other representations and warranties of Parent set forth in
Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality” or
“Parent Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement
and on 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 as of
such earlier date), except where the failure of such representations and warranties of Parent to be so true and correct, individually
or in the aggregate, has not had and is not reasonably likely to have a Parent Material Adverse Effect.
(b) Parent
and Merger Sub shall have performed or complied with all agreements and covenants required by this Agreement to be performed or
complied with by them on or prior to the Closing Date, in each case in all material respects.
(c) Parent
shall have delivered to the Company a certificate, signed by an executive officer of Parent and dated as of the Closing Date, certifying
as to the matters set forth in Section 8.2(a) and Section 8.2(b).
(d) No
Parent Material Adverse Effect shall have occurred since the date of this Agreement.
(e) The
persons listed on Schedule 8.2(e) of the Disclosure Schedules shall have resigned from all of their positions and offices
with Parent and Merger Sub.
(f) Parent
and Merger Sub shall have delivered or shall stand ready to deliver duly executed and filed certificates, instruments, Contracts
and other documents specified to be delivered by it hereunder pursuant to Sections 1.3(a)(i) through 1.3(b)(vii),
as applicable.
(g) The
Parent Charter shall be amended and restated in the form of the Parent A&R Charter and shall be executed and filed with the
Secretary of State of the State of Delaware, and the Parent Bylaws shall be amended and restated in the form of the Parent A&R
Bylaws.
(h) After
deducting the aggregate amount of cash proceeds that will be required to satisfy any exercise of the Parent Stockholder Redemptions
from the Trust Account and the aggregate amount of any unpaid Parent Transaction Costs and Company Transaction Costs, such remaining
amount shall be equal to or exceed $90,000,000.
(i) Parent
shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 7.11,
available to Parent for payment of the Company Transaction Costs and the Parent Transaction Costs at the Closing.
(j) The
Surrendered Shares and Surrendered Warrants shall have been cancelled by Parent.
8.3 Additional
Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate and effect the
Merger and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions,
any of which may be waived, in writing, exclusively by Parent:
(a) The
Fundamental Representations of the Company 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 contain herein) on and
as of the date of this Agreement and on 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 as of such earlier date); and all other representations and warranties of the Company set forth in Article
III hereof shall be true and correct (without giving effect to any limitation as to “materiality” or “Company
Material Adverse Effect” or any similar limitation contained herein) on and as of the date of this Agreement and on 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 as of such earlier date),
except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the
aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.
(b) The
Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied
with by it at or prior to the Closing Date.
(c) The
Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing
Date, certifying as to the matters set forth in Section 8.3(a) and Section 8.3(b).
(d) No
Company Material Adverse Effect shall have occurred since the date of this Agreement.
(e) The
Company or the Seller shall have delivered, or caused to be delivered, or shall stand ready to deliver duly executed and filed
certificates, instruments, Contracts and other documents specified to be delivered by it hereunder pursuant to Sections 1.3(b)(i)
through 1.3(b)(vii).
Article
IX
TERMINATION
9.1 Termination.
This Agreement may be terminated and the Transactions abandoned at any time prior to the Closing:
(a) by
mutual written agreement of Parent and the Seller at any time;
(b) by
either Parent or the Seller if the Transactions shall not have been consummated by September 22, 2020 (the “Outside Date”);
provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be
available to any Party whose action or failure to act has been a principal cause of or resulted in the failure of the Transactions
to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; provided further,
that if Parent receives approval from the Parent stockholders prior to the Outside Date to amend the Parent Charter to extend the
date by which Parent must complete its initial Business Combination to a date that is after the Outside Date, the Outside Date
shall be the earlier of such new date and December 22, 2020.
(c) by
either Parent or the Seller if a Governmental Entity shall have issued an Order or taken any other action, in any case having the
effect of permanently restraining, enjoining or otherwise prohibiting the Transactions, including the Merger, which Order or other
action is final and nonappealable;
(d) by
the Seller, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of Parent
or Merger Sub, or if any representation or warranty of Parent or Merger Sub shall have become untrue (irrespective of the Company’s
provision of or failure to provide any disclosure required by Section 6.5), in either case such that the conditions set
forth in Section 8.2(a) or Section 8.2(b) would not be satisfied as of the time of such breach or as of the time
such representation or warranty shall have become untrue; provided, that if such breach by Parent or Merger Sub is curable
by Parent or Merger Sub prior to the Closing, then the Seller must first provide written notice of such breach and may not terminate
this Agreement under this Section 9.1(d) until the earlier of: (i) 30 days after delivery of written notice from
the Seller to Parent of such breach; and (ii) the Outside Date; provided, further, that Parent or Merger Sub,
as applicable, continues to exercise commercially reasonable efforts to cure such breach (it being understood that the Seller
may not terminate this Agreement pursuant to this Section 9.1(d) if: (A) it shall have materially breached this Agreement
and such breach has not been cured; or (B) if such breach by Parent or Merger Sub is cured during such 30-day period);
(e) by
Parent, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of the Company
or the Seller or if any representation or warranty of the Company shall have become untrue (irrespective of the Company’s
provision of or failure to provide any disclosure required by Section 5.4), in either case such that the conditions set
forth in Section 8.3(a) or Section 8.3(b) would not be satisfied as of the time of such breach or as of the time
such representation or warranty shall have become untrue; provided, that if such breach is curable by the Company or the
Seller prior to the Closing, then Parent must first provide written notice of such breach and may not terminate this Agreement
under this Section 9.1(e) until the earlier of: (i) 30 days after delivery of written notice from Parent to the Seller
of such breach; and (ii) the Outside Date; provided, further, that the Company or the Seller, as applicable,
continue to exercise commercially reasonable efforts to cure such breach (it being understood that Parent may not terminate this
Agreement pursuant to this Section 9.1(e) if: (A) it shall have materially breached this Agreement and such breach
has not been cured; or (B) if such breach by the Company is cured during such 30-day period);
(f) by
either Parent or the Seller, if, at the Special Meeting (including any adjournments thereof), the Parent Stockholder Matters are
not duly adopted by the stockholders of Parent by the requisite vote under the DGCL and the Parent Organizational Documents; or
(g) by
Parent, if evidence that the Company Stockholder Approval was obtained shall not have been delivered to Parent within 24 hours
following the execution and delivery of this Agreement.
9.2 Notice
of Termination; Effect of Termination.
(a) Any
termination of this Agreement under Section 9.1 above will be effective immediately upon the delivery of written notice
of the terminating Party to the other Parties.
(b) In
the event of the termination of this Agreement as provided in Section 9.1, this Agreement shall be of no further force
or effect and the Transactions shall be abandoned, except for and subject to the following: (i) Section 7.5, Section 7.7,
this Section 9.2, Article XI (General Provisions) and the Confidentiality Agreement shall survive the termination
of this Agreement; and (ii) nothing herein shall relieve any Party from liability for any intentional breach of this Agreement
or Fraud in the making of the representations and warranties in this Agreement.
Article
X
NO SURVIVAL
10.1 No
Survival. None of the representations, warranties, covenants or agreements in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Closing and all rights, claims and causes of action (whether in contract or in tort
or otherwise, or whether at law or in equity) with respect thereto shall terminate at the Closing. Notwithstanding the foregoing,
neither this Section 10.1 nor anything else in this Agreement to the contrary shall limit: (a) the survival of any covenant
or agreement of the Parties which by its terms is required to be performed or complied with in whole or in part after the Closing,
which covenants and agreements shall survive the Closing in accordance with their respective terms; or (b) any claim against any
Person with respect to Fraud in the making of the representations and warranties by such Person in Article III or Article
IV, as applicable.
Article
XI
GENERAL PROVISIONS
11.1 Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the
sender as having been delivered personally; (b) one Business Day after being sent by a nationally recognized overnight courier
guaranteeing overnight delivery; (c) on the date delivered, if delivered by email, with confirmation of transmission; or (d) on
the second Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such
communications, to be valid, must be addressed as follows:
if to Parent or Merger
Sub, to:
LF Capital Acquisition
Corp.
600 Madison Avenue,
New York, NY 10022
Attention: Scott Reed
E-mail: sreed@lfcapital.co
with a copy (which
shall not constitute notice) to:
Dechert LLP
Three Bryant Park
1095 Avenue of the
Americas
New York, NY 10036-6797
Attention: Martin
Nussbaum; Christian A. Matarese
Email: martin.nussbaum@dechert.com;
christian.matarese@dechert.com
if to the Company
or the Seller to:
Landsea Holdings Corporation
660 Newport Center
Drive, Suite 300
Newport Beach, CA
92660
Attention: Franco
Tenerelli
Email: ftenerelli@landsea.us
with a copy (which
shall not constitute notice) to:
Gibson, Dunn &
Crutcher LLP
200 Park Ave,
New York, NY 10166
Attention: Dennis
Friedman; Michael Flynn; Evan D’Amico
Email: dfriedman@gibsondunn.com;
mflynn@gibsondunn.com; edamico@gibsondunn.com
or to such other address or to the attention
of such Person or Persons as the recipient Party has specified by prior written notice to the sending Party (or in the case of
counsel, to such other readily ascertainable business address as such counsel may hereafter maintain). If more than one method
for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
11.2 Interpretation.
The words “hereof,” “herein,” “hereinafter,” “hereunder,” and “hereto”
and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement
and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context
otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined.
Whenever the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference
is made in this Agreement to an Exhibit, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. When
a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement.
Unless otherwise indicated the words “include,” “includes” and “including” when used herein
shall be deemed in each case to be followed by the words “without limitation.” The words “made available”
mean that the subject documents or other materials were included in and available at the “Project Seal” online datasite
hosted by Venue at least one (1) Business Day prior to the date of this Agreement. The table of contents and headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
When reference is made herein to “the business of” an entity, such reference shall be deemed to include the business
of all direct and indirect subsidiaries of such entity. Reference to the subsidiaries of an entity shall be deemed to include all
direct and indirect subsidiaries of such entity. The word “or” shall be disjunctive but not exclusive. When calculating
the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement,
the date that is the reference date in calculating such period shall be excluded and if the last day of such period is a non-Business
Day, the period in question shall end on the next succeeding Business Day. References to a particular statute or regulation including
all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or
otherwise modified from time to time. All references to currency amounts in this Agreement shall mean United States dollars.
11.3 Counterparts;
Electronic Delivery. This Agreement, the Transaction Agreements and each other document executed in connection with the Transactions,
and the consummation thereof, may be executed in one or more counterparts, all of which shall be considered one and the same document
and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties,
it being understood that all Parties need not sign the same counterpart. Delivery by facsimile or electronic transmission to counsel
for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.
11.4 Entire
Agreement; Third Party Beneficiaries. This Agreement, the other Transaction Agreements and any other documents and instruments
and agreements among the Parties as contemplated by or referred to herein, including the Exhibits and Schedules hereto: (a) constitute
the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the Parties with respect to the subject matter hereof; and (b) other than the rights, at and
after the Effective Time, of Persons pursuant to the provisions of Section 11.14 (which will be for the benefit of the Persons
set forth therein), are not intended to confer upon any other Person other than the Parties any rights or remedies.
11.5 Severability.
In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal,
invalid or unenforceable under any present or future requirement of Law: (a) such provision will be fully severable; (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the
remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there
will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal,
invalid or unenforceable provision as may be possible.
11.6 Other
Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly
conferred upon a Party 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 would occur in the event that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed that each Party shall be entitled to enforce specifically
the terms and provisions of this Agreement in any court of the United States or any state having jurisdiction and immediate injunctive
relief to prevent breaches of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and
without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or
in equity. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty,
that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will
not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy
contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other
injunctive relief. Each Party hereby further agrees that in the event of any action by any other party for specific performance
or injunctive relief, it (i) will not assert that a remedy at law or other remedy would be adequate or that specific performance
or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate
or any other grounds, and (ii) waives any requirement under Applicable Law to post security as a prerequisite to obtaining equitable
relief.
11.7 Governing
Law. This Agreement and the consummation the Transactions, and any action, suit, dispute, controversy or claim arising out
of this Agreement and the consummation of the Transactions, or the validity, interpretation, breach or termination of this Agreement
and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of
Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
11.8 Consent
to Jurisdiction; Waiver of Jury Trial.
(a) Each
of the Parties irrevocably consents to the exclusive jurisdiction and venue of the courts of the State of Delaware or the federal
courts located in the State of Delaware in connection with any matter based upon or arising out of this Agreement, the other Transaction
Agreements and the consummation of the Transactions, agrees that process may be served upon them in any manner authorized by the
laws of the State of Delaware for such Person and waives and covenants not to assert or plead any objection which they might otherwise
have to such manner of service of process. Each Party and any Person asserting rights as a third-party beneficiary may do so only
if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (a) such Person is not personally
subject to the jurisdiction of the above named courts for any reason; (b) such Legal Proceeding may not be brought or is not
maintainable in such court; (c) such Person’s property is exempt or immune from execution; (d) such Legal Proceeding
is brought in an inconvenient forum; (e) the venue of such Legal Proceeding is improper; or (f) this Agreement, or the subject
matter hereof, may not be enforced in or by such courts. Each Party and any Person asserting rights as a third-party beneficiary
hereby agrees not to commence or prosecute any such action, claim, cause of action or suit other than before one of the above-named
courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action,
claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum
or otherwise. Each Party hereby consents to service of process in any such proceeding in any manner permitted by Delaware law,
and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery,
or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 11.1. Notwithstanding
the foregoing in this Section 11.8, any Party may commence any action, claim, cause of action or suit in a court other than
the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(b) TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY
BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR
COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT, EACH OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION
OF THE TRANSACTIONS, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE
SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY NOR ANY PERSON ASSERTING
RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NONCOMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS. FURTHERMORE, NO PARTY NOR ANY PERSON
ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER
LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
11.9 Rules
of Construction. Each of the Parties agrees that it has been represented by independent counsel of its choice during the negotiation
and execution of this Agreement and each Party hereto and its counsel cooperated in the drafting and preparation of this Agreement
and the documents referred to herein and, therefore, waive the application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.
11.10 Expenses.
Except as otherwise expressly provided in this Agreement, whether or not the Transactions are consummated, each Party will pay
its own costs and expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this
Agreement and the Transaction Agreements and the consummation of the Transactions.
11.11 Assignment.
No Party may assign, directly or indirectly, including by operation of law, either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of the other Parties. Subject to the first sentence of this Section 11.11,
this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted
assigns.
11.12 Amendment.
This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the
Parties.
11.13 Extension;
Waiver. At any time prior to the Closing, Parent (on behalf of itself and Merger Sub), on the one hand, and the Seller (on
behalf of itself and the Company) may, to the extent not prohibited by Applicable Law: (a) extend the time for the performance
of any of the obligations or other acts of the other Party; (b) waive any inaccuracies in the representations and warranties
made to the other Party contained herein or in any document delivered pursuant hereto; and (c) waive compliance with any of
the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension
or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. Delay in exercising any
right under this Agreement shall not constitute a waiver of such right. In the event any provision of any of the other Transaction
Agreement in any way conflicts with the provisions of this Agreement (except where a provision therein expressly provides that
it is intended to take precedence over this Agreement), this Agreement shall control.
11.14 No
Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, this Agreement may only be enforced
against, and any Legal Proceeding for breach of this Agreement may only be made against, the entities that are expressly identified
herein as Parties to this Agreement, and no Related Party of a Party shall have any liability for any liabilities or obligations
of the Parties for any Legal Proceeding (whether in tort, contract or otherwise) for breach of this Agreement or in respect of
any oral representations made or alleged to be made in connection herewith. No Party shall have any right of recovery in respect
hereof against any Related Party of a Party and no personal liability shall attach to any Related Party of a Party through such
Party, whether by or through attempted piercing of the corporate veil, by the enforcement of any judgment, fine or penalty or by
virtue of any requirement of Law or otherwise. The provisions of this Section 11.14 are intended to be for the benefit of,
and enforceable by the Related Parties of the Parties and each such Person shall be a third-party beneficiary of this Section 11.14.
This Section 11.14 shall be binding on all successors and assigns of Parties.
11.15 Legal
Representation. Parent hereby agrees on behalf of its directors, members, partners, officers, employees and Affiliates (including
after the Closing, the Company), and each of their respective successors and assigns (all such parties, the “Waiving Parties”),
that Gibson, Dunn & Crutcher LLP (or any successor) may represent the Seller or any of its directors, members, partners, officers,
employees or Affiliates (other than, after the Closing, the Company) (collectively, the “Seller Group”), in
each case, in connection with any Legal Proceeding or obligation arising out of or relating to this Agreement, any Transaction
Agreement or the Transactions, notwithstanding its representation (or any continued representation) of the Group Companies or other
Waiving Parties, and each of Parent and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably
waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto.
Parent and the Company acknowledge that the foregoing provision applies whether or not Gibson, Dunn & Crutcher LLP provides
legal services to any Group Companies after the Closing Date. Each of Parent and the Company, for itself and the Waiving Parties,
hereby further irrevocably acknowledges and agrees that all communications, written or oral, between any Group Company or any member
of the Seller Group and its counsel, including Gibson, Dunn & Crutcher LLP, made in connection with the negotiation, preparation,
execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any
Transaction Agreements or the Transactions, or any matter relating to any of the foregoing, are privileged communications that
do not pass to the Company notwithstanding the Merger, and instead survive, remain with and are controlled by the Seller Group
(the “Privileged Communications”), without any waiver thereof. Parent 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 Privileged
Communications, whether located in the records or email server of the Company or otherwise (including in the knowledge or the officers
and employees of the Company), in any Legal Proceeding against or involving any of the Parties after the Closing, and Parent and
the Company agree not to assert that any privilege has been waived as to the Privileged Communications, whether located in the
records or email server of the Company or otherwise (including in the knowledge of the officers and employees of the Company).
11.16 Disclosure
Schedules and Exhibits. The Disclosure Schedules shall be arranged in separate parts corresponding to the numbered and lettered
sections and subsections contained in this Agreement, and the information disclosed in any numbered or lettered part shall be deemed
to relate to and to qualify only the particular representation or warranty set forth in the corresponding numbered or lettered
Section or subsection of this Agreement, except to the extent that: (a) such information is cross-referenced in another part of
the Disclosure Schedules; or (b) it is reasonably apparent on the face of the disclosure (without reference to any document referred
to therein or any independent knowledge on the part of the reader regarding the matter disclosed) that such information qualifies
another representation and warranty of the Company or Parent, as applicable, in this Agreement. Certain information set forth in
the Disclosure Schedules is or may be included solely for informational purposes, is not an admission of liability with respect
to the matters covered by the information, and may not be required to be disclosed pursuant to this Agreement. The specification
of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in
the Disclosure Schedules is not intended to imply that such amounts (or higher or lower amounts) are or are not material, and no
Party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Disclosure Schedules
in any dispute or controversy between the Parties as to whether any obligation, item, or matter not described herein or included
in Disclosure Schedules is or is not material for purposes of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be executed as of the date first written above.
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LF CAPITAL ACQUISITION CORP.
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By:
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/s/ Scott Reed
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Name:
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Scott Reed
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Title:
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President and Chief Executive Officer
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LFCA MERGER SUB, INC.
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By:
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/s/ Scott Reed
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Name:
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Scott Reed
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Title:
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President and Chief Executive Officer
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LANDSEA HOLDINGS CORPORATION
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By:
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/s/ John Ho
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Name:
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John Ho
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Title:
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CEO
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LANDSEA HOMES INCORPORATED
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By:
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/s/ John Ho
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Name:
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John Ho
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Title:
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CEO
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[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
SCHEDULE A
Definitions
1.1. Additional
Terms. For purposes of this Agreement, the following capitalized terms have the following meanings:
“Affiliate”
shall mean, as applied to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect
common control with, such Person. For purposes of this definition, “control” (including with correlative meanings,
the terms “controlling,” “controlled by” and “under common control with”), as applied to any
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 voting securities, by Contract or otherwise.
“Business Day”
shall mean any day other than a Saturday, a Sunday or other day on which commercial banks in New York, New York are authorized
or required by Law to close.
“CARES Act”
means the Coronavirus Aid, Relief, and Economic Security Act, as may be amended or modified.
“Cash and Cash
Equivalents” shall mean cash and cash equivalents, including checks, money orders, marketable securities, short-term
instruments, negotiable instruments, funds in time and demand deposits or similar accounts on hand, in lock boxes, in financial
institutions or elsewhere, together with all accrued but unpaid interest thereon, and all bank, brokerage or other similar accounts.
For the avoidance of doubt, the amount of Cash and Cash Equivalents as of any given time shall be decreased by any Restricted Cash.
“Closing Number
of Securities” shall mean the number of shares of Parent Class A Stock equal to (a) the Merger Consideration; divided
by (b) $10.56.
“Code”
shall mean the Internal Revenue Code of 1986, as amended.
“Company Common
Stock” shall mean the shares of common stock, par value $0.001 per share, of the Company.
“Company Data”
means any Group Company’s proprietary or confidential data, including customer data and Personal Data held by any Group Company.
“Company Material
Adverse Effect” shall mean any change, event, or occurrence, that, individually or when aggregated with other changes,
events, or occurrences: (a) has had a materially adverse effect on the business, assets, financial condition or results of operations
of the Group Companies, taken as a whole; or (b) is reasonably likely to prevent or materially delay the ability of the Company
to consummate the Transactions; provided, however, that no change, event, occurrence or effect arising out of or
related to any of the following, alone or in combination, shall be taken into account in determining whether a Company Material
Adverse Effect pursuant to clause (a) has occurred: (i) acts of war or terrorism, or any escalation or worsening of any such
acts of war or terrorism, or changes in global, national or regional political or social conditions; (ii) earthquakes, hurricanes,
tornados, epidemics and pandemics declared by the World Health Organization (including the COVID-19 virus) or other natural or
man-made disasters; (iii) changes attributable to the public announcement or pendency of the Transactions (including the impact
thereof on relationships with customers, suppliers, employees or Governmental Entities); (iv) changes or proposed changes
in Applicable Law, regulations or interpretations thereof or decisions by courts or any Governmental Entity first announced after
the date of this Agreement; (v) changes or proposed changes in GAAP (or any interpretation thereof) first announced after
the date of this Agreement; (vi) any downturn in general economic conditions, including changes in the credit, debt, securities,
financial, capital or reinsurance markets (including changes in interest or exchange rates or the price of any security, market
index or commodity), in each case, in the United States or anywhere else in the world; (vii) events or conditions generally
affecting the industries and markets in which the Company operates; (viii) any failure to meet any projections, forecasts,
estimates, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position, provided that
this clause (viii) shall not prevent a determination that any change, event, or occurrence underlying such failure has resulted
in a Company Material Adverse Effect; or (ix) any actions expressly required to be taken, or expressly required not to be
taken, pursuant to the terms of this Agreement; provided, however, that if a change or effect related to clause (ii)
or clauses (iv) through (vii) disproportionately adversely affects the Group Companies, taken as a whole, compared to other
Persons operating in the same industry as the Group Companies, then such disproportionate impact may be taken into account in determining
whether a Company Material Adverse Effect has occurred.
“Company Stockholder”
shall mean a holder of a share of Company Common Stock issued and outstanding immediately prior to the Effective Time.
“Company Transaction
Costs” shall mean all fees, costs and expenses of the Seller and the Group Companies, in each case, incurred prior to
and through the Closing in connection with the negotiation, preparation and execution of this Agreement, the other Transaction
Agreements and the consummation of the Transactions, including: (a) all bonuses, change in control payments, severance payments,
retirement payments, retention or similar payments (including, without limitation, all cash payments made in respect of any outstanding
Phantom Unit awards) or success fees payable in connection with or anticipation of the consummation of the Transactions, and the
employer portion of payroll Taxes payable as a result of the foregoing amounts including with respect to any cash payments made
with respect to the Phantom Units (including any accrued but unpaid payroll taxes deferred pursuant to the CARES Act), and (b)
all transaction, deal, brokerage, financial advisory or any similar fees payable in connection with or anticipation of the consummation
of the Transactions; provided, however, that in the event that unpaid Company Transaction Costs as of Closing exceed
$12,000,000 (excluding any payment and related tax withholdings in respect of any outstanding Phantom Unit award paid out at the
Closing), for purposes of this Agreement, such Company Transaction Costs shall equal $12,000,000 and the Seller shall be responsible
for any unpaid amounts in excess thereof (the “Company Cap”); provided further that the Company Cap shall
not apply to payments in respect of any outstanding Phantom Unit award and such amounts shall be included as a Company Transaction
Cost payable pursuant to Section 1.4(a)(vi).
“Confidentiality
Agreement” shall mean that certain Confidentiality Agreement, dated February 9, 2020, by and between Parent and
the Company, as the same may be amended or supplemented from time to time.
“Contract”
shall mean any contract, subcontract, agreement, indenture, note, bond, loan or credit agreement, instrument, installment obligation,
lease, sublease, mortgage, use or occupancy agreement, deed of trust, license, sublicense, commitment, power of attorney, guaranty
or other legally binding commitment, arrangement, understanding or obligation, whether written or oral, in each case, as amended
and supplemented from time to time and including all schedules, annexes and exhibits thereto.
“Employee Benefit
Plan” shall mean each “employee benefit plan” (within the meaning of Section 3(3) of ERISA) and each other
retirement, supplemental retirement, deferred compensation, employment, bonus, incentive compensation, stock purchase, employee
stock ownership, equity-based, severance, change in control, employee loan, health welfare, retiree medical or life insurance,
educational, employee assistance, fringe benefit plan or program and all other employee benefit plans, policies, agreement (including
any employment, consulting and collective bargaining agreements), programs or arrangements, whether or not subject to ERISA, whether
formal or informal, oral or written, which any Group Company or any ERISA Affiliate sponsors or maintains or contributes or has
any obligation to contribute for the benefit of the current or former employees, directors or other individual service providers
of the Group Companies or with respect to which any Group Company has any direct or indirect present or future liability on behalf
of such employees, director or other individual service providers.
“Environmental
Law” shall mean any federal, state, local or foreign law, regulation, order, decree, permit, authorization, common law
or agency requirement relating to: (a) the protection, investigation or restoration of the environment, health and safety
(concerning exposure to Hazardous Substances), or natural resources; (b) the handling, use, presence, disposal, release or
threatened release of any Hazardous Substance; or (c) noise, odor, wetlands, pollution, contamination or any injury or threat
of injury to persons or property, and shall include, but not be limited to, federal statues known as the Clean Air Act, Clean Water
Act, Comprehensive Environmental Response, Compensation and Liability Act, Emergency Planning and Community Right-to-Know Act,
Endangered Species Act, Hazardous Materials Transportation Act, Migratory Bird Treaty Act, National Environmental Policy Act, Occupational
Safety and Health Act, Oil Pollution Act of 1990, Resource Conservation and Recovery Act, Safe Drinking Water Act, and Toxic Substances
Control Act.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated) that, together with the Company or any of its Subsidiaries is treated
as a “single employer” under Section 414 of the Code.
“Exchange Act”
shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Existing Credit
Agreements” shall mean those loan agreements set forth in Schedule 3.16(a)(viii) of the Disclosure Schedules,
in the case of each of the foregoing, as amended or otherwise modified on or prior to the date hereof and as further amended or
otherwise modified following the date hereof in accordance with the terms hereof.
“Fraud”
shall mean common law fraud that involves a knowing and intentional misrepresentation in the representations and warranties set
forth in Article III (with respect to the Company) or Article IV (with respect to Parent and Merger Sub), as applicable,
with the intent that the other party rely thereon, and for the avoidance of doubt, does not include constructive fraud or other
claims based on constructive knowledge, negligent misrepresentation or similar theories that do not constitute common law fraud
under Delaware law.
“Fundamental Representations”
shall mean: (a) with respect to the Company, Sections 3.1 (Organization and Qualification), 3.2 (Capitalization),
3.3 (Authority Relative to this Agreement), and 3.23 (Brokers; Third Party Expenses); and (b) with respect to
Parent, Sections 4.1 (Organization and Qualification), 4.3 (Capitalization), 4.4 (Authority Relative to this
Agreement) and 4.16 (Brokers).
“Governmental
Entity” shall mean: (a) any federal, provincial, state, local, municipal, national or international court, governmental
commission, government or governmental authority, department, regulatory or administrative agency, board, bureau, agency or instrumentality,
tribunal, arbitrator or arbitral body (public or private), or similar body; (b) any self-regulatory organization; or (c) any
political subdivision of any of the foregoing.
“Group Companies”
shall mean the Company and all of its direct and indirect Subsidiaries.
“Hazardous Substance”
shall mean any substance, material or waste that is: (a) listed, classified or regulated pursuant to any Environmental Law;
(b) any petroleum product or by-product, asbestos-containing material, lead-containing paint or plumbing, polychlorinated
biphenyls, radioactive materials or radon; or (c) any other substance which is the subject of regulatory action by any Governmental
Entity pursuant to any Environmental Law.
“Indebtedness”
shall mean, in respect of the Group Companies, any of the following: (a) any indebtedness for borrowed money; (b) any
obligations evidenced by bonds, debentures, notes or other similar instruments; (c) any obligations as lessee under capitalized
leases; (d) any obligations, contingent or otherwise, under acceptance, letters of credit or similar facilities to the extent
drawn; (e) any guaranty of any of the foregoing; (f) any accrued interest, fees and charges in respect of any of the foregoing;
(g) any accrued but unpaid income Taxes and any accrued but unpaid payroll taxes deferred pursuant to the CARES Act; (h) any unpaid
income Taxes and deferred payroll Taxes; (i) any obligations to pay the deferred and unpaid purchase price of property and equipment
which have been delivered, including any earn-out liabilities associated with past acquisitions; (j) any derivative, hedging, swap,
foreign exchange or similar arrangements, including swaps, caps, collars, hedges or similar arrangements; and (k) any prepayment
premiums and penalties actually due and payable, and any other fees, expenses, indemnities and other amounts actually payable as
a result of the prepayment or discharge of any of the foregoing. For the avoidance of doubt, Indebtedness shall exclude Company
Transaction Costs.
“Intellectual
Property” shall mean all rights, title and interest in, relating to or deriving from intellectual property, whether protected,
created or arising under the laws of the United States or any other jurisdiction, whether registered or unregistered, including:
(a) all patents and patent applications, including provisional patent applications and similar filings and any and all substitutions,
divisions, continuations, continuations-in-part, divisions, reissues, renewals, extensions, reexaminations, patents of addition,
supplementary protection certificates, utility models, inventors’ certificates, or the like and any foreign equivalents of
the foregoing (including certificates of invention and any applications therefor) (collectively, “Patents”);
(b) all domestic and foreign copyrights, copyright registrations, copyright applications, including any of the foregoing that protect
original works of authorship fixed in any tangible medium of expression, including literary works (including all forms and types
of computer software, including all source code, object code, firmware, development tools, files, records and data, and all documentation
related to any of the foregoing), pictorial and graphic works (collectively, “Copyrights”); (c) computer
software and firmware, including data files, source code, object code and software-related specifications and documentation (collectively
“Software”) (d) all trademarks, service marks, trade names, business marks, service names, brand names, trade
dress rights, logos, corporate names, trade styles, and other source or business identifiers and general intangibles of a like
nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and
extensions thereof (collectively, “Trademarks”); (e) all Internet domain names and social media accounts; (f)
trade secrets, technology, discoveries and improvements, know-how, proprietary rights, formulae, confidential and proprietary information,
technical information, techniques, inventions (including conceptions and/or reductions to practice), designs, drawings, procedures,
processes, models, formulations, manuals and systems, whether or not patentable or copyrightable (collectively “Trade
Secrets”); (g) proprietary databases and data compilations and all documentation relating to the foregoing; and, including
in each case any; (h) all other intellectual property rights, proprietary rights, or confidential information and materials.
“Knowledge”
shall mean the actual knowledge or awareness as to a specified fact or event, following reasonable due inquiry, of: (a) with
respect to the Company, the individuals listed on Schedule 1.1 of the Disclosure Schedules; and (b) with respect to
Parent or Merger Sub, the individuals listed on Schedule 1.1 of the Disclosure Schedules.
“Landsea Properties”
shall mean Landsea Green Properties Co., Ltd., a company incorporated in Bermuda with limited liability, the shares of which are
listed on the main board of the HKSE (stock code: 106)
“Law”
shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, treaty, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling, injunction, judgment, order, assessment, writ or other legal
requirement, administrative policy or guidance, or requirement issued, enacted, imposed, adopted, promulgated, implemented, entered
into or otherwise put into effect by or under the authority of any Governmental Entity
“Legal Proceeding”
shall mean any action, suit, hearing, claim, charge, audit, lawsuit, litigation, investigation (formal or informal), inquiry, arbitration
or proceeding (in each case, whether civil, criminal or administrative or at law or in equity) by or before a Governmental Entity.
“Lien”
shall mean any mortgage, deed of trust, hypothecation, assignment, pledge, security interest, encumbrance, lien, restriction or
charge of any kind (including, any conditional sale or other title retention agreement or lease in the nature thereof), any agreement
to give any security interest and any restriction relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise
of any other attribute of ownership, the filing of any financing statement, and other similar liens and encumbrances.
“Losses”
shall mean any and all deficiencies, judgments, settlements, losses, damages, interest, fines, penalties, Taxes, costs and expenses
(including reasonable legal, accounting and other costs and expenses of professionals incurred in connection with investigating,
defending, settling or satisfying any and all demands, claims, actions, causes of action, suits, proceedings, assessments, judgments
or appeals, and in seeking indemnification, compensation or reimbursement therefor).
“Merger Consideration”
shall mean an amount equal to $343,805,119.68.
“Nasdaq”
means the Nasdaq Stock Exchange.
“Non-Refundable
Deposit Contract” means any contract for the purchase of real property pursuant to which a deposit is required.
“Order”
shall mean any award, injunction, judgment, regulatory or supervisory mandate, order, writ, subpoena, violation notice, decree
or ruling entered, issued, made, or rendered by any Governmental Entity that possesses competent jurisdiction, in each case whether
preliminary or final.
“Owned Intellectual
Property” shall mean all Intellectual Property owned or purported to be owned by any of the Group Companies.
“Owned Real Property”
means the real property owned by the Company or any Company Subsidiary, together with all buildings and other structures, facilities
or improvements currently or as of the Closing Date located thereon and all easements, licenses, rights and appurtenances of the
Company or any Company Subsidiary relating to the foregoing.
“Parent Cash”
shall mean, as of the date of determination: (a) all amounts in the Trust Account; plus (b) all other Cash and Cash Equivalents
of Parent.
“Parent Material
Adverse Effect” shall mean any change, event, or occurrence, that, individually or when aggregated with other changes,
events, or occurrences: (a) has had a materially adverse effect on the business, assets, financial condition or results of
operations of Parent and Merger Sub, taken as a whole; or (b) is reasonably likely to prevent or materially delay the ability
of Parent or Merger Sub to consummate the Transactions; provided, however, that no change or effect related to any
of the following, alone or in combination, shall be taken into account in determining whether a Parent Material Adverse Effect
pursuant to clause (a) has occurred: (i) acts of war or terrorism, or any escalation or worsening of any such acts of
war or terrorism, or changes in global, national or regional political or social conditions; (ii) earthquakes, hurricanes,
tornados, epidemics and pandemics declared by the World Health Organization (including the COVID-19 virus) or other natural or
man-made disasters; (iii) changes attributable to the public announcement or pendency of the Transactions (including the impact
thereof on relationships with customers, suppliers, employees or Governmental Entities); (iv) changes or proposed changes
in Applicable Law, regulations or interpretations thereof or decisions by courts or any Governmental Entity first announced after
the date of this Agreement; (v) changes or proposed changes in GAAP (or any interpretation thereof) first announced after
the date of this Agreement; (vi) any downturn in general economic conditions, including changes in the credit, debt, securities,
financial, capital or reinsurance markets (including changes in interest or exchange rates or the price of any security, market
index or commodity), in each case, in the United States or anywhere else in the world; or (vii) any actions expressly required
to be taken, or expressly required not to be taken, pursuant to the terms of this Agreement; provided, however, that
if a change or effect related to clause (ii) or clauses (iv) through (vi) disproportionately adversely affects Parent or Merger
Sub, taken as a whole, compared to other Persons operating in the same industry as Parent or Merger Sub, then such disproportionate
impact may be taken into account in determining whether a Parent Material Adverse Effect has occurred.
“Parent Organizational
Documents” shall mean the Amended and Restated Certificate of Incorporation of Parent, dated as June 19, 2018 (the “Parent
Charter”) and the Bylaws of Parent (the “Parent Bylaws”) any other similar organization documents
of Parent, as each may be amended, modified or supplemented.
“Parent Transaction
Costs” shall mean all fees, costs and expenses of Parent incurred prior to and through the Closing Date in connection
with the negotiation, preparation and execution of this Agreement, the other Transaction Agreements and the consummation of the
Transactions, whether paid or unpaid prior to the Closing.
“Parent Units”
means those certain units issued by the Parent, each consisting of one share of Parent Class A Stock and one Public Warrant, currently
listed on Nasdaq under the symbol “LFACU”.
“Permitted Lien”
shall mean (a) Liens for current period Taxes not yet delinquent or for Taxes that are being contested in good faith by appropriate
proceedings and in each case that are reserved for on the Financial Statements in accordance with GAAP; (b) statutory and
contractual Liens of landlords with respect to leased real property; (c) Liens of carriers, warehousemen, mechanics, materialmen
and repairmen incurred in the ordinary course and: (i) not yet delinquent; or (ii) that are being contested in good faith through
appropriate proceedings; (d) in the case of leased real property, zoning, building, or other restrictions, variances, covenants,
rights of way, encumbrances, easements and other irregularities in title, none of which, individually or in the aggregate, interfere
in any material respect with the value or the present use of or occupancy of the affected parcel by any of the Group Companies;
(e) Liens securing the Indebtedness of any of the Group Companies; (f) in the case of Intellectual Property, third party
non-exclusive license agreements entered into in the ordinary course; (g) Liens incurred in connection with capital lease
obligations of any of the Group Companies; and (h) all exceptions, restrictions, easements, imperfections of title, charges, rights-of-way
and other Liens of record that do not, individually or in the aggregate, materially interfere with the value or the present use
of the assets of the Group Companies, taken as a whole.
“Person”
shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited
liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company),
firm or other enterprise, association, organization, entity or Governmental Entity (or any department, agency or political subdivision
thereof).
“Personal Data”
means (i) a natural person’s name, street address, telephone number, email address, photograph, passport number, credit card
number, bank information, or account number, and (ii) any other piece of non-publicly available information that allows the identification
of such natural person. Each Group Company has in place appropriate written internal information security policies, which are published
to employees and enforced, and which include guidelines for the use, processing, confidentiality and security of Company Data consistent
with Applicable Law, contractual commitments of such Group Company and any published privacy policies.
“Phantom Units”
means those unfunded, unsecured awards granted to certain officers, employees and directors of the Seller pursuant to that certain
Landsea Phantom Stock Plan, adopted by the board of directors of the Seller on and effective
December 13, 2018.
“Related Parties”
shall mean, with respect to a Person, such Person’s former, current and future direct or indirect equityholders, controlling
Persons, shareholders, optionholders, members, general or limited partners, Affiliates, Representatives, and each of their respective
successors and assigns.
“Release”
shall mean any release, pumping, pouring, emptying, injecting, escaping, leaching, migrating, dumping, seepage, spill, leak, discharge,
disposal or emission of Hazardous Substances.
“Restricted Cash”
shall mean any cash with a contractual restriction on use.
“SEC”
shall mean the United States Securities and Exchange Commission.
“Securities Act”
shall mean the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
shall mean, with respect to any Person, any partnership, limited liability company, corporation or other business entity of which:
(a) if a corporation, a majority of the total voting power of shares of capital 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 that Person or one or more of the other Subsidiaries of that Person or a combination thereof; (b) if a partnership,
limited liability company or other business entity, a majority of the partnership or other similar ownership interests thereof
is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination
thereof; or (c) in any case, such Person controls the management thereof; provided that, for all purposes hereunder,
the “Company Subsidiaries” shall include Landsea Homes-WAB LLC and its Subsidiaries.
“Tax”
or “Taxes” shall mean: (a) any and all federal, state, local and foreign taxes, including, without limitation,
gross receipts, income, profits, license, sales, use, estimated, occupation, value added, ad valorem, transfer, franchise, withholding,
payroll, recapture, net worth, employment, windfall profits taxes, excise and property taxes, alternative minimum taxes, escheat,
unclaimed property, assessments, stamp, environmental, registration, governmental charges, duties, levies and other similar charges,
in each case, imposed by a Governmental Entity, (whether disputed or not) together with all interest, penalties and additions imposed
by a Governmental Entity with respect to any such amounts; and (b) any liability in respect of any items described in clause (a)
payable by reason of Contract, indemnification obligation, successor or transferee liability, operation of law or as the result
of being or having been a member of any consolidated, combined, unitary or other group pursuant to Treasury Regulation Section
1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar provision under law) or otherwise.
“Tax Return”
shall mean any return, declaration, report, claim for refund, or information return or statement relating to Taxes that is filed
or required to be filed with a Governmental Entity, including any schedule or attachment thereto and any amendment thereof.
“Transaction Agreements”
shall mean this Agreement and all the agreements documents, instruments and certificates entered into in connection herewith or
therewith and any and all exhibits and schedules thereto, including but not limited to those agreements set forth under Section
1.3 and the Recitals.
“Transactions”
shall mean the transactions contemplated pursuant to this Agreement, including the Merger.
“Treasury Regulations”
means the regulations promulgated by the U.S. Department of the Treasury pursuant to and in respect of provisions of the Code.
“Warrant Agreement”
means that certain Warrant Agreement, dated as of June 19, 2018, by and between Parent and Continental, as such agreement may be
modified, amended or supplemented from time to time.
“Warrant Amendment”
shall mean an amendment to the Warrant Agreement such that, as of the Effective Time, (i) each issued and outstanding Public Warrant,
which currently entitles each holder thereof to purchase one share of Parent Class A Stock at an exercise price of $11.50 per share,
will become exercisable for one-tenth of one share at an exercise price of $1.15 per one-tenth share ($11.50 per whole share) and
(ii) each holder of Public Warrants issued and outstanding immediately prior to the Effective Time shall be entitled to receive
from the Parent a one-time payment of $1.85 per Public Warrant as soon as reasonably practicable following the Effective Time.
Exhibit 10.6
FORM OF FORWARD PURCHASE AND SUBSCRIPTION
AGREEMENT
This Forward Purchase and
Subscription Agreement (this “Agreement”), made as of August 31, 2020, by and among LF Capital Acquisition Corp.,
a Delaware corporation (the “Company”), Level Field Capital LLC, a Delaware limited liability company (the “Sponsor”),
and the subscriber named on the signature page below (the “Subscriber”), is intended to set forth certain representations,
covenants and agreements among the Company, the Sponsor and the Subscriber, with respect to the acquisition by the Subscriber of
Class A Common Stock of the Company, par value $0.0001 per share (“Common Stock”), pursuant to Sections 1(a)(iii)
and (iv) hereof, which representations, covenants and agreements are made in connection with the proposed business combination
(the “Transaction”) among the Company, LF Capital Merger Sub, a Delaware corporation (“Merger Sub”),
Landsea Holdings Corporation, a Delaware corporation (“LHC”), and Landsea Homes Incorporated, a Delaware corporation
(“Landsea”).
WHEREAS, the parties wish
to enter into this Agreement, pursuant to which, subject to the terms and conditions set forth in this Agreement, at any one time
or from time to time, commencing on the second Trading Day following the date the Company publicly files the Merger Agreement (as
defined below) and the related management presentation on a Current Report on Form 8-K (the “Purchase Commencement Date”)
and through the Purchase Deadline (as defined below), other than as expressly provided in Section 1(a)(iii) of this Agreement,
the Subscriber shall purchase its Purchase Allocation (as defined below); and
WHEREAS, as consideration
for the Subscriber’s commitment to purchase its Purchase Allocation, such Subscriber shall be entitled to receive the Utilization
Fee Shares (as defined below) and, if applicable, the Additional Fee Shares (as defined below) as set forth in Section 1(b) hereof.
NOW, THEREFORE, in consideration
of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. (a)
Forward Purchase.
(i)
The Subscriber covenants and agrees that until the earlier of the (A) consummation of the Transaction (the “Merger
Closing”) or (B) Termination Date (as defined below), it shall not, and shall ensure that each of its Affiliates does
not, Transfer any shares of Common Stock acquired pursuant to the terms of this Agreement. For purposes hereof, “Affiliate”
shall mean affiliate as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including, without limitation, any entity for which a Subscriber directly or indirectly serves as investment adviser
or manager; and “Transfer” shall mean any direct or indirect transfer, redemption, disposition or monetization
in any manner whatsoever, including, without limitation, through redemption election or any derivative transactions.
(ii)
The Subscriber covenants and agrees that it shall, and shall cause each of its Affiliates to, (A) vote all shares of Common
Stock that it owns as of the record date for the special meeting of the Company’s stockholders called to vote on the Transaction
(the “Record Date”), up to a maximum of the Target Allocation, for the Special Meeting (as defined below) in
favor of the Transaction and each of the other proposals of the Company set forth in the Proxy Statement to be filed with the Securities
and Exchange Commission in connection with a special meeting of Company stockholders (the “Special Meeting”)
to be held to approve, among other things, the Transaction, and (B) not exercise its redemption rights in respect of any shares
of Common Stock owned by Subscriber or its Affiliates, up to a maximum number of shares not to exceed the Target Allocation, in
connection with the Special Meeting or in connection with the Company’s proposal to extend the deadline for its initial business
combination beyond September 22, 2020 (the “Extension”).
(iii)
Commencing on the Purchase Commencement Date and through the close of business on the Trading Day (as defined below) immediately
preceding the Record Date (the “Purchase Deadline”), the Subscriber shall (provided it is lawful to do so) use
commercially reasonable efforts to purchase shares of Common Stock at a price per share up to the Maximum Price (as defined below),
from time to time, for an aggregate purchase price up to (but not exceeding) the Purchase Allocation amount set forth underneath
such Subscriber’s name on the signature page hereto (its “Purchase Allocation”). For the avoidance of
doubt, the Company may demonstrate the Subscriber did not take commercially reasonable efforts to purchase all or a portion of
its Purchase Allocation solely by means of documentary evidence of offers of availability of shares of Common Stock at such pricing
from the Placement Agent to such Subscriber (with respect to such portion of its Purchase Allocation). All such purchases under
this Section 1(a)(iii) shall be made by the Subscriber via open market purchases or in privately negotiated transactions with third
parties, including forward contracts, provided that: (a) any such privately negotiated transactions settle no later than the Record
Date, and (b) the Subscriber shall not be required to purchase any shares of Common Stock at a price per share above $10.56, inclusive
of any fees and commissions (the “Maximum Price”). On the calendar day immediately following the Purchase Deadline,
and at such other times as may be requested by the Company, the Subscriber shall (x) notify the Company in writing of the number
of shares of Common Stock so purchased pursuant to this Section 1(a)(iii) (the “Market Shares”) and the aggregate
purchase price paid therefor by such Subscriber (net of any transaction fees) and (y) in the case of any Market Shares acquired
in privately negotiated transactions with third parties, provide the Company with all documentation reasonably requested by the
Company and its advisors (including without limitation, its legal counsel) and its transfer agent and proxy solicitor to confirm
that the Subscriber purchased, or has irrevocably contracted to purchase, such shares. Notwithstanding the foregoing, and for the
avoidance of doubt, if the Agreement and Plan of Merger, by and among the Company, Merger Sub, LHC and Landsea, dated as of August
31, 2020 (the “Merger Agreement”) is terminated in accordance with its terms prior to the Merger Closing, then
Subscriber’s obligations to purchase shares of Common Stock under this Section 1(a)(iii) will immediately terminate and be
extinguished. For purposes hereof, “Trading Day” shall mean a day during which trading in the Common Stock generally
occurs on The Nasdaq Capital Market.
(iv)
In the event the Subscriber has not acquired a sufficient number of Market Shares pursuant to Section 1(a)(iii) hereof to
satisfy in full its Purchase Allocation, because a sufficient number of shares of Common Stock were unavailable for purchase from
private third parties or in the open market at or below the then applicable Maximum Price, such Subscriber shall be released from
its obligation to purchase the remaining amount of its Purchase Allocation.
(v) For the avoidance of
doubt, nothing in this Agreement will prohibit the Subscriber from acquiring shares of Common Stock of the Company in excess of
its applicable Purchase Allocation; provided, no Utilization Fee Shares or Additional Fee Shares will be issued as compensation
for any shares purchased in excess of the applicable Purchase Allocation.
(b)
Utilization Fees and Additional Fees.
(i)
Substantially concurrently with the Merger Closing, in consideration for the Subscriber’s obligation to acquire its
Purchase Allocation, the Company shall issue to the Subscriber a number of shares of Common Stock (the “Utilization Fee
Shares”) equal to 0.06775 multiplied by the Target Allocation (as defined below) of such Subscriber; provided that such
Utilization Fee Shares for the Subscriber shall be rounded to the nearest whole Share, and the Subscriber shall not receive fractional
Shares. The Subscriber’s “Target Allocation” shall equal (i) such Subscriber’s Purchase Allocation; divided
by (ii) the then applicable Maximum Price. For the avoidance of doubt, subject to the terms of this Agreement, Subscriber shall
be entitled to receive Utilization Fee Shares whether or not Subscriber purchases any shares of Common Stock.
(ii) Substantially concurrently
with the Merger Closing, in consideration for the Subscriber’s obligations to acquire its Purchase Allocation, if the Pre-Closing
Price (as defined below) exceeds $10.56, the Company shall issue to such Subscriber a number of shares of Common Stock (the “Additional
Fee Shares”) equal to the Additional Fee Amount (as defined below) multiplied by the applicable Target Allocation of
such Subscriber; provided such Additional Fee Shares for the Subscriber shall be rounded to the nearest whole Share, and the Subscriber
shall not receive fractional Shares. Notwithstanding the above, if shares of Common Stock were procurable by the Subscriber at
or below the then applicable Maximum Price during the period of the Purchase Commencement Date and through the close of business
on the tenth Trading Day prior to the consummation of the Merger Closing (as may be demonstrated solely by means of documentary
evidence of offers of availability of shares of Common Stock at such pricing from the Placement Agent to such Subscriber), such
Subscriber shall not receive the Additional Fee Shares. For the avoidance of doubt, this equates to a maximum of 0.04167
Additional Fee Shares issued for each share of Common Stock to be purchased by the Subscriber, assuming a purchase price per share
of Common Stock of $10.56.
“VWAP” means,
for any date, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding Trading Day)
on the trading market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day
from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)).
The “Additional Fee Amount” shall
equal (a) the Reference Price (as defined below) divided by (b) $10.56.
The “Reference Price” shall equal
(a) the lesser of (i) $11.00 or (ii) the Pre-Closing Price, minus (b) $10.56.
The “Pre-Closing Price” shall equal
the average VWAP for the five (5) Trading Day period ending on the close of business on the Trading Day prior to the date the Company
redeems its Common Stock in connection with the Transaction.
For the avoidance of doubt, if the Pre-Closing
Price is less than or equal to $10.56, no Additional Fee Shares shall be issued. For the avoidance of doubt, subject to the terms
of this Agreement, the Subscriber may be entitled to receive Additional Fee Shares whether or not Subscriber purchases any shares
of Common Stock.
(iii)
Immediately prior to the Merger Closing, the Sponsor shall transfer to the Company for forfeiture, and the Company shall
retire and cancel, a number of shares of Class B Common Stock held by the Sponsor equal to the aggregate number of Utilization
Fee Shares and the Additional Fee Shares issued to the Subscriber.
2. Delivery.
The Subscriber understands and agrees that its right to receive the Offered Shares is made subject to the following terms and conditions:
(a)
Contemporaneously with the execution and delivery of this Agreement, the Subscriber shall execute and deliver the Investor
Questionnaire (as defined below) no fewer than three (3) days prior to the anticipated date of the Merger Closing.
(b) On
the date of the Merger Closing, the Company shall deliver (or cause the delivery of) the Utilization Fee Shares and the Additional
Fee Shares, as applicable, in book entry form to the Subscriber or to a custodian designated by the Subscriber, as applicable.
(c) At or prior to the
date of the Merger Closing, the Subscriber shall deliver to the Company a duly completed and executed Internal Revenue Service
Form W-9.
3. Expenses.
Each party hereto shall pay all of its own expenses in connection with this Agreement and the transactions contemplated hereby.
4. Registration
Rights.
(a)
The Company agrees that, within forty-five (45) calendar days after the Merger Closing (the “Filing Deadline”),
the Company will file with the Securities and Exchange Commission (the “SEC”) (at the Company’s sole cost
and expense) a registration statement (the “Registration Statement”) registering the resale of the Utilization
Fee Shares and the Additional Fee Shares (the “Offered Shares”), and the Company shall use its commercially
reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no
later than the 60th calendar day (or 120th calendar day if the SEC notifies the Company that it will “review” the Registration
Statement) following the Filing Deadline (such date, the “Effectiveness Date”); provided, however,
that the Company’s obligations to include such Offered Shares in the Registration Statement are contingent upon the Subscriber
furnishing in writing to the Company such information regarding such Subscriber, the securities of the Company held by such Subscriber
and the intended method of disposition of the Shares as shall be reasonably requested by the Company to effect the registration
of such Offered Shares, and shall execute such documents in connection with such registration as the Company may reasonably request
that are customary of a selling stockholder in similar situations.
(b) The Company further
agrees that, in the event that (i) the Registration Statement is not filed with the SEC on or prior to the Filing Deadline, (ii)
the Registration Statement has not been declared effective by the SEC by the Effectiveness Date, (iii) after such Registration
Statement is declared effective by the SEC, (A) such Registration Statement ceases for any reason (including without limitation
by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective
as to all Offered Shares for which it is required to be effective or (B) the Subscriber is not permitted to utilize the Registration
Statement to resell its Offered Shares (in each case of (A) and (B), (x) other than within the time period(s) permitted by this
Agreement (including pursuant to Section 4(c)) and (y) excluding by reason of a post-effective amendment required in connection
with the Company’s filing of an amendment thereto (a “Special Grace Period”), which Special Grace Period
shall not be treated as a Registration Default (as defined below)), or (iv) after the date six months following the date of the
Merger Closing, and only in the event the Registration Statement is not effective or available to sell all of the Offered Shares,
the Company fails to file with the SEC any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in
compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable) promulgated under the Securities Act of 1933, as amended (the
“Securities Act”), as a result of which the Subscriber, if not an affiliate of the Company, is unable to sell
its Offered Shares without restriction under Rule 144 (or any successor thereto) (each such event referred to in clauses (i) through
(iv), a “Registration Default” and, for purposes of such clauses, the date on which such Registration Default
occurs, a “Default Date”), then in addition to any other rights such Subscriber may have hereunder or under
applicable law, on each such Default Date and on each monthly anniversary of each such Default Date (if the applicable Registration
Default shall not have been cured by such date) until the applicable Registration Default is cured, the Company shall pay to such
Subscriber an amount in cash, as partial liquidated damages and not as a penalty (“Liquidated Damages”), equal
to 0.5% of the aggregate number of Offered Shares held by the Subscriber on the Default Date, multiplied by $10.56 (the “Default
Amount”); provided, however, that if such Subscriber fails to provide the Company with any information requested by the
Company that is required to be provided in such Registration Statement with respect to such Subscriber as set forth herein, then,
for purposes of this Section 4, the Filing Date or Effectiveness Date, as applicable, for a Registration Statement with respect
to such Subscriber shall be extended until two (2) Trading Days following the date of receipt by the Company of such required information
from such Subscriber; and in no event shall the Company be required hereunder to pay to such Subscriber pursuant to this Agreement
an aggregate amount that exceeds 5.0% of the Default Amount. The Liquidated Damages pursuant to the terms hereof shall apply on
a daily pro-rata basis for any portion of a month prior to the cure of a Registration Default, except in the case of the first
Default Date. The Company shall deliver the cash payment to such Subscriber with respect to any Liquidated Damages by the fifth
Trading Day after the date payable. If the Company fails to pay said cash payment to such Subscriber in full by the fifth Trading
Day after the date payable, the Company will pay interest thereon at a rate of 5.0% per annum (or such lesser maximum amount that
is permitted to be paid by applicable law, and calculated on the basis of a year consisting of 360 days) to such Subscriber, accruing
daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. Notwithstanding
the foregoing, nothing shall preclude the Subscriber from pursuing or obtaining any available remedies at law, specific performance
or other equitable relief with respect to this Section 4 in accordance with applicable law. The parties agree that notwithstanding
anything to the contrary herein, no Liquidated Damages shall be payable to the Subscriber with respect to any period during which
all of such Subscriber’s Offered Shares may be sold by such Subscriber without volume or manner of sale restrictions under
Rule 144 and the Company is in compliance with the current public information requirements under Rule 144(c)(1) (or Rule 144(i)(2),
if applicable).
(c) Notwithstanding anything
to the contrary in this Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Registration Statement,
and from time to time to require the Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof,
if the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred, which
negotiation, consummation or event, the Company’s board of directors reasonably believes, upon the advice of legal counsel,
could require additional disclosure by the Company in the Registration Statement of material information that the Company has a
bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected,
in the reasonable determination of the Company’s board of directors, upon the advice of legal counsel, to cause the Registration
Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”);
provided, however, that the Company may not delay or suspend the Registration Statement on more than two occasions or for more
than sixty (60) consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period.
Upon receipt of any written notice from the Company of the happening of any Suspension Event (which notice shall not contain material
non-public information) during the period that the Registration Statement is effective or if as a result of a Suspension Event
the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they
were made (in the case of the prospectus) not misleading, the Subscriber agrees that (i) it will immediately discontinue offers
and sales of the Offered Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant
to Rule 144) until such Subscriber receives copies of a supplemental or amended prospectus (which the Company agrees to promptly
prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment
has become effective or unless otherwise notified by the Company that it may resume such offers and sales, and (ii) it will maintain
the confidentiality of any information included in such written notice delivered by the Company unless otherwise required by law
or subpoena. If so directed by the Company, the Subscriber will deliver to the Company or, in such Subscriber’s sole discretion
destroy, all copies of the prospectus covering the Offered Shares in such Subscriber’s possession; provided, however, that
this obligation to deliver or destroy all copies of the prospectus covering the Offered Shares shall not apply (i) to the extent
such Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory
or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored
electronically on archival servers as a result of automatic data back-up.
(d)
The Company shall indemnify and hold harmless the Subscriber (to the extent a seller under the Registration Statement),
and its affiliates, officers, directors, members, managers, partners, employees, agents, attorneys and advisors, and each person
who controls such Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), to the
fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and investigation and reasonable and documented out-of-pocket attorneys’
fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration
Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out
of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading.
(e)
The Subscriber shall indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest
extent permitted by applicable law, from and against any and all Losses, as incurred, arising out of or are 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 or omissions are based solely
upon information regarding such Subscriber furnished in writing to the Company by such Subscriber expressly for use therein. In
no event shall the liability of the Subscriber pursuant to this paragraph exceed the dollar amount of the Purchase Allocation.
5. Representations,
Warranties, Understandings, Risk Acknowledgments, and Covenants of the Subscriber. The Subscriber hereby represents, warrants
and covenants to the Company as follows:
(a) Such Subscriber has
been duly incorporated or otherwise formed and is validly existing in good standing under the laws of its jurisdiction of incorporation
or formation, with full power and authority to enter into, deliver and perform its obligations under this Agreement.
(b) This Agreement has
been duly authorized, executed and delivered by such Subscriber and constitutes a legal, valid and binding obligation of such Subscriber,
enforceable against such Subscriber signed in accordance with its terms, except as may be limited or otherwise affected by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of
creditors generally, and (ii) principles of equity, whether considered at law or equity.
(c) The execution, delivery
and performance by such Subscriber of this Agreement and the consummation of the transactions contemplated herein will not conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property or assets of such Subscriber or any of its subsidiaries
pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or
instrument to which such Subscriber or any of its subsidiaries is a party or by which such Subscriber or any of its subsidiaries
is bound or to which any of the property or assets of such Subscriber or any of its subsidiaries is subject, which would reasonably
be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results
of operations of such Subscriber and its subsidiaries, taken as a whole (a “Subscriber Material Adverse Effect”),
or materially affect the legal authority of such Subscriber to comply in all material respects with the terms of this Agreement;
(ii) result in any violation of the provisions of the organizational documents of such Subscriber or any of its subsidiaries;
or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency
or body, domestic or foreign, having jurisdiction over such Subscriber or any of its subsidiaries or any of their respective properties
that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of such
Subscriber to comply in all material respects with this Agreement.
(d)
Such Subscriber (i) was at the time it was offered the Offered Shares, and will be at the closing of the issuance of
the Utilization Fee Shares and the Additional Fee Shares (x) a “qualified institutional buyer” (as defined in
Rule 144A promulgated under the Securities Act) or (y) an “accredited investor” (within the meaning of Rule 501(a)
under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A and (ii) is
acquiring the Utilization Fee Shares and, if applicable, the Additional Fee Shares for his, her or its own account, and not for
the account of others, or if such Subscriber is subscribing for the such shares as a fiduciary or agent for one or more investor
accounts, each owner of such account is a qualified institutional buyer or an institutional “accredited investor” (within
the meaning of Rule 501(a) under the Securities Act) and such Subscriber has full investment discretion with respect to each
such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of
each owner of each such account, and (iii) is not acquiring the Offered Shares with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule A
following the signature page hereto). Such Subscriber is not an entity formed for the specific purpose of acquiring the Offered
Shares.
(e)
Such Subscriber understands that the Offered Shares are being offered in a transaction not involving any public offering
within the meaning of the Securities Act and that the Offered Shares have not been registered under the Securities Act. Such Subscriber
understands that Offered Shares may not be resold, transferred, pledged or otherwise disposed of by such Subscriber absent an effective
registration statement under the Securities Act except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons
pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or
(iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases
(i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States,
and that any certificates or book entry records representing the Offered Shares shall contain a legend to such effect. Such Subscriber
acknowledges that the Offered Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities
Act. Such Subscriber understands and agrees that the Offered Shares, unless and until registered under an effective registration
statement pursuant to the Securities Act, will be subject to transfer restrictions and, as a result of these transfer restrictions,
such Subscriber may not be able to readily resell the Offered Shares and may be required to bear the financial risk of an investment
in the Offered Shares for an indefinite period of time. Such Subscriber understands that it has been advised to consult legal counsel
prior to making any offer, resale, pledge or transfer of any of the Offered Shares.
(f)
Such Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made
to such Subscriber by the Company, or its officers or directors or any other party to the Transaction, expressly or by implication,
other than those representations, warranties, covenants and agreements of the Company included in this Agreement.
(g) Such Subscriber represents
and warrants that its acquisition and holding of the Offered Shares will not constitute or result in a non-exempt prohibited transaction
under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue
Code of 1986, as amended (the “Code”), or any applicable similar law.
(h)
Such Subscriber acknowledges and agrees that such Subscriber has received such information as such Subscriber deems necessary
in order to make an investment decision with respect to the Offered Shares. Such Subscriber represents and agrees that such Subscriber
and such Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such
answers and obtain such information as such Subscriber and such undersigned’s professional advisor(s), if any, have deemed
necessary to make an investment decision with respect to the Offered Shares.
(i)
Such Subscriber became aware of this offering of the Offered Shares solely by means of direct contact between such Subscriber
and the Company or a representative of the Company, and the Offered Shares were offered to such Subscriber solely by direct contact
between such Subscriber and the Company or a representative of the Company. Such Subscriber did not become aware of this offering
of the Offered Shares, nor were the Offered Shares offered to such Subscriber, by any other means. Such Subscriber acknowledges
that the Company represents and warrants that the Offered Shares (i) were not offered by any form of general solicitation
or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution
in violation of, the Securities Act, or any state securities laws. Such Subscriber has a substantive pre-existing relationship
with the Company, Landsea or their affiliates, B. Riley FBR, Inc. (“B. Riley FBR”), or Barclays Capital Inc.
(together with B. Riley FBR, the “Placement Agents”).
(j)
Such Subscriber acknowledges that it is aware that there are substantial risks incident to the ownership of the Offered
Shares. Such 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 Offered Shares, and such Subscriber has sought such accounting, legal and tax advice as
such Subscriber has considered necessary to make an informed investment decision.
(k)
Alone, or together with any professional advisor(s), such Subscriber has adequately analyzed and fully considered the risks
of an investment in the Offered Shares and determined that the Offered Shares are a suitable investment for such Subscriber and
that such Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of such Subscriber’s
investment in the Company. Such Subscriber acknowledges specifically that a possibility of total loss exists.
(l)
In making its decision to enter into this Agreement, such Subscriber represents and warrants that it has relied solely upon
independent investigation made by such Subscriber and the representations and warranties set forth herein. Without limiting the
generality of the foregoing, such Subscriber has not relied on any statements or other information provided by the Placement Agents
concerning the Company or the Offered Shares or the offer and sale of the Offered Shares.
(m)
Such Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering
of the Offered Shares or made any findings or determination as to the fairness of this investment.
(n)
Such Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons
administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any executive
order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person
or entity targeted by any OFAC sanctions program, (ii) an entity owned fifty percent (50%) or more, directly or indirectly,
by one or more persons or entities on the OFAC List, (iii) a Designated National as defined in the Cuban Assets Control Regulations,
31 C.F.R. Part 515, or (iv) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell
bank (collectively, a “Prohibited Investor”). Such Subscriber agrees to provide law enforcement agencies, if
requested thereby, such records as required by applicable law, provided that such Subscriber is permitted to do so under applicable
law. If such Subscriber is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.)
(the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”),
and its implementing regulations (collectively, the “BSA/PATRIOT Act”), such Subscriber maintains policies
and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required,
it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs,
including the OFAC List. To the extent required, it maintains policies and procedures reasonably designed to ensure that the funds
held by such Subscriber and used to purchase the Offered Shares were legally derived.
(o)
No disclosure or offering document has been prepared by the Placement Agents or any of their respective affiliates in connection
with the offer and sale of the Offered Shares.
(p)
The Placement Agents and each of their respective directors, officers, employees, representatives and controlling persons
have made no independent investigation with respect to the Company or the Offered Shares or the accuracy, completeness or adequacy
of any information supplied to such Subscriber by the Company.
(q)
In connection with the transfer of the Offered Shares, the Placement Agents have not acted as such Subscriber’s financial
advisor or fiduciary.
(r)
Such Subscriber and its affiliates do not have, and during the 30-day period immediately prior hereto such undersigned and
its affiliates have not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under
the Exchange Act of 1934, as amended, or short sale positions with respect to the securities of the Company. In addition, such
Subscriber shall comply with all applicable provisions of Regulation M promulgated under the Securities Act.
(s) Such Subscriber acknowledges
and agrees that the certificate or book-entry position representing the Offered Shares will bear or reflect, as applicable, a legend
substantially similar to the following:
“THIS SECURITY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE ISSUER OF THIS SECURITY THAT (A) THIS SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, (II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (III) TO THE ISSUER
OF THIS SECURITY, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE. THE ISSUER OF THIS SECURITY MAY REQUIRE THE DELIVERY OF A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR ANY OTHER INFORMATION IT REASONABLY REQUIRES TO CONFIRM THE SECURITIES ACT EXEMPTION FOR SUCH TRANSACTION.”
(t) The aggregate
consideration set forth in this Agreement is the result of arm’s-length negotiations between the Company and such Subscriber.
(u) No Offered Shares
will be issued to such Subscriber in connection with the Transaction for indebtedness (or interest thereon) of the Company.
(v) No Offered Shares
will be transferred to a Subscriber for services rendered to or for the benefit of the Company or any of its affiliates in connection
with the transfer of Offered Shares pursuant to this Agreement or the Transaction.
(w) There is no
indebtedness between such Subscriber, on the one hand, and the Company or any of its affiliates, on the other hand, and there will
be no indebtedness created in favor of such Subscriber as a result of the Transaction.
(x) Such Subscriber
is not under the jurisdiction of a court in a Title 11 or similar case (within the meaning of Section 368(a)(3)(A) of the Code.
(y) Such Subscriber’s
non-tax business purpose for effecting the transactions contemplated hereby is to acquire the Offered Shares for investment.
(z) Such Subscriber
(a) does not have any plan or intention to sell, transfer, exchange or otherwise dispose of any Offered Shares, (b) has not entered
into, nor is such Subscriber subject to, any agreement, arrangement or binding commitment (whether written or oral), to sell, transfer,
exchange or otherwise dispose of any Offered Shares, or (c) has not granted any option to purchase or acquire any Offered Shares.
(aa) Such Subscriber
will comply with all reporting and record-keeping requirements applicable to the issuance of the Offered Shares and the Transaction
which are prescribed by the Code, the Income Tax Regulations promulgated thereunder (the “Treasury Regulations”),
or by forms, instructions, or other publications of the United States Internal Revenue Service, including, without limitation,
the record-keeping and information filing requirements prescribed by Treasury Regulations Section 1.351-3.
6. Representations
and Warranties of the Company. The Company represents and warrants to the Subscriber as follows:
(a)
The Company has been duly incorporated, is validly existing and is in good standing under the laws of the State of Delaware,
with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted, and
to enter into, deliver and perform its obligations under this Agreement.
(b) The Offered
Shares have been duly authorized and are validly issued, fully paid and non-assessable and have not been issued in violation of,
or subject to, any preemptive or similar rights created under the Company’s certificate of incorporation, or under the laws
of the State of Delaware.
(c) This Agreement
has been duly authorized, executed and delivered by the Company and is enforceable in accordance with its terms, except as may
be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other
laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law
or equity.
(d) The execution,
delivery and performance by the Company of this Agreement, the issuance of the Offered Shares and the compliance by the Company
with all of the provisions of this Agreement and the consummation of the transactions herein will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the
terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company is subject, which would reasonably be expected to have a material adverse effect on the business,
properties, financial condition, stockholders’ equity or results of operations of the Company (a “Company Material
Adverse Effect”) or materially affect the validity of the Offered Shares or the legal authority of the Company to comply
in all material respects with the terms of this Agreement; (ii) result in any violation of the provisions of the organizational
documents of the Company; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any
court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties or of
the Nasdaq Marketplace Rules, that would have a Company Material Adverse Effect or materially affect the validity of the Offered
Shares or the legal authority of the Company to comply with this Agreement.
(e) The Company
has delivered to such Subscriber a true and correct copy of the Merger Agreement (including all schedules and exhibits thereto)
in substantially the same form as the form executed and delivered by the parties thereto as of August 31, 2020.
(f) Assuming the
accuracy of the representations and warranties of the Subscriber, the Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority, self-regulatory organization (including The Nasdaq Stock Market (“Nasdaq”)) or other person in connection
with the execution, delivery and performance of this Agreement (including, without limitation, the issuance of the Offered Shares),
other than (i) filings required by applicable state securities laws, (ii) the filing of the Registration Statement pursuant to
Section 5 below, (iii) the filing of a Notice of Exempt Offering of Securities on Form D with the SEC under Regulation D of the
Securities Act, (iv) those required by Nasdaq, including with respect to obtaining shareholder approval, (v) those required to
consummate the Transaction as provided under the Merger Agreement, (vi) the filing of notification under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, if applicable, and (vii) the failure of which to obtain would not be reasonably likely to have
a Company Material Adverse Effect or have a material adverse effect on the Company’s ability to consummate the transactions
contemplated hereby, including the issuance and sale of the Offered Shares.
(g) Except for such
matters as have not had and would not be reasonably likely to have a Company Material Adverse Effect or have a material adverse
effect on the Company’s ability to consummate the transactions contemplated hereby, including the issuance and sale of the
Offered Shares, as of the date hereof, there is no (i) suit, action, proceeding or arbitration before a governmental authority
or arbitrator pending, or, to the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree,
injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company.
(h) The issued and
outstanding shares of Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq
under the symbol “LFAC.” There is no suit, action, proceeding or investigation pending or, to the knowledge of the
Company, threatened against the Company by Nasdaq or the SEC with respect to any intention by such entity to deregister the Common
Stock or prohibit or terminate the listing of the shares of Common Stock on Nasdaq. The Company has taken no action that is designed
to terminate the registration of the shares of Common Stock under the Exchange Act.
(i) The Company
will use its reasonable best efforts to cause the Offered Shares to be approved for listing on Nasdaq upon their issuance.
(j) Assuming the
accuracy of Subscriber’s representations and warranties set forth in Section 5 of this Agreement, no registration under the
Securities Act is required for the offer and sale of the Offered Shares by the Company to Subscriber.
(k) Neither the
Company nor any person acting on its 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 Offered Shares.
(l) As of the date
immediately prior to the date of this Agreement, the Company had $141,970,563.17 in the Trust Account (as defined below).
(m) At the time
of the Purchase Commencement Date, to the knowledge of the Company, the Subscriber shall not be, nor shall it be deemed to be,
in possession of material non-public information received from the Company or any of its officers, directors or employees.
(n) On the date
hereof, the Company shall publicly file the Merger Agreement, the investor presentation provided to Subscriber and the form of
this Agreement with the SEC on a Current Report on Form 8-K and each such document shall be identical in all material respects
with such documents provided to the Subscriber.
7. Understandings.
The Subscriber understands, acknowledges and agrees with the Company as follows:
(a)
Such Subscriber hereby acknowledges and agrees that, subject to the terms and conditions of this Agreement, except as required
by Law, such Subscriber is not entitled to cancel, terminate or revoke this Agreement or any agreements of such Subscriber hereunder,
and that this Agreement and such other agreements shall survive the death or disability of such Subscriber and shall be binding
upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors, legal representatives
and permitted assigns. If such Subscriber is more than one person, the obligations of such Subscriber hereunder shall be joint
and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by
and be binding upon each such person and his/her heirs, executors, administrators, successors, legal representatives and permitted
assigns.
(b)
The issuance of the Utilization Fee Shares and the Additional Fee Shares is intended to be exempt from registration, which
is dependent upon the truth, completeness and accuracy of the statements made by such Subscriber herein.
(c)
There is only a limited public market for the Common Stock. There can be no assurance that the Subscriber will be able to
sell or dispose of the Offered Shares.
(d)
The representations and warranties of such Subscriber contained in this Agreement and in any other writing delivered in
connection with the transactions contemplated hereby shall be true and correct in all respects on and as of the date hereof and
the date of the issuance of the Utilization Fee Shares and the Additional Fee Shares as if made on and as of such date and such
representation and warranties and all agreements of such Subscriber contained herein and in any other writing delivered in connection
with the transactions contemplated hereby.
(e) The
Company is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar
business combination involving the Company and one or more businesses or assets. The Subscriber further acknowledges that, as described
in the Company’s prospectus dated June 18, 2018 (the “Prospectus”) relating to the Company’s initial
public offering, available at www.sec.gov, substantially all of the Company’s assets consist of the cash proceeds of the
Company’s initial public offering and private placements of its securities, and substantially all of those proceeds have
been deposited in a trust account (the “Trust Account”) for the benefit of the Company, its public shareholders
and the underwriters of the Company’s initial public offering. The Subscriber, on behalf of itself and its affiliates and
representatives, hereby irrevocably waives any and all right, title and interest, or any claim of any kind they have or may have
in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result
of, or arising out of, this Agreement.
(f) The
Company, the Placement Agents and others will rely on the acknowledgments, understandings, agreements, representations and warranties
contained in this Agreement. Prior to the date of the Merger Closing, the Subscriber agrees to promptly notify the Company if any
of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate. The
Subscriber agrees that the issuance of the Offered Shares to Subscriber by the Company will constitute a reaffirmation of the acknowledgments,
understandings, agreements, representations and warranties herein (as modified by any such notice) by such Subscriber as of the
time of such issuance.
(g) The
Company is entitled to rely upon this Agreement and is irrevocably authorized to produce this Agreement or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
(h) The
Subscriber’s identity and the issuance of the Offered Shares, as well as the nature of the Subscriber’s obligations
hereunder, may be disclosed in any public announcement or disclosure required by the SEC and in any registration statement, proxy
statement, consent solicitation statement or any other SEC filing to be filed by the Company in connection with such issuance and/or
the Transaction.
(i) The
Subscriber’s obligation to acquire its Purchase Allocation is conditioned upon the Company entering into forward purchase
and subscription agreements in the form as this Agreement with aggregate purchase allocations of at least $35 million under all
such agreements (collectively, the “FPAs”), including, for the avoidance of doubt, the Purchase Allocation contained
in this Agreement.
8. Survival.
All representations, warranties and covenants contained in this Agreement shall survive (i) the acceptance of this Agreement by
the Company and (ii) changes in the transactions, documents and instruments described herein which are not material or which are
to the benefit of the Subscriber, in each case until the earlier of the (A) Merger Closing or (B) Termination Date. Notwithstanding
the foregoing, if the Company does not receive the approval of its stockholders for the Extension, the Subscriber does not waive
its rights to any liquidating distributions from the Trust Account upon the redemption of such Subscriber’s shares. The Subscriber
acknowledges the meaning and legal consequences of the representations, warranties and covenants contained herein and that the
Company has relied upon such representations, warranties and covenants in determining such Subscriber’s qualification and
suitability to acquire the Offered Shares. For purposes of this Agreement, the “Termination Date” shall be the
earlier of (y) the date on which the Merger Agreement is terminated in accordance with its terms or (z) December 22, 2020.
9. Notices.
Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, sent by overnight
mail via a reputable overnight carrier, or sent by certified or registered mail, return receipt requested and postage prepaid,
and shall be deemed to be given and received (a) when so delivered personally, (b) when received by the addressee if sent by reputable
overnight carrier, or (c) one (1) business day after the date of mailing if sent by certified or registered mail, in each case
to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder
(a)
if to the Company (prior to the Merger Closing), to the following address:
LF Capital Acquisition Corp.
600 Madison Avenue, New York, NY 10022
Attention: Scott Reed
E-mail: sreed@lfcapital.co
with a required copy to (which copy
shall not constitute notice):
Dechert LLP
Three Bryant Park
1095 Avenue of the Americas
New York, NY 10036-6797
Attention: Martin Nussbaum; Christian A. Matarese
Email: martin.nussbaum@dechert.com; christian.matarese@dechert.com
(b) if after the
closing of the Transaction, to the Company, to:
Landsea Homes Corporation
660 Newport Center Drive, Suite 300
Newport Beach, CA 92660
Attention: Franco Tenerelli
Email: ftenerelli@landsea.us
with a required copy to (which copy
shall not constitute notice):
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Dennis Friedman; Michael Flynn; Evan D’Amico
Email: dfriedman@gibsondunn.com; mflynn@gibsondunn.com; edamico@gibsondunn.com
(c)
if to the Subscriber, to the address set forth on the signature page hereto.
(d)
or at such other address as any party shall have specified by notice in writing to the others.
10. Notification
of Changes. The Subscriber agrees and covenants to notify the Company immediately upon the occurrence of any event prior to
the Merger Closing that would cause any representation, warranty, covenant or other statement contained in this Agreement to be
false or incorrect or of any change in any statement made herein occurring prior to the Merger Closing. The Company agrees and
covenants to notify the Subscriber immediately upon the occurrence of any event prior to the Merger Closing that would cause any
representation, warranty, covenant or other statement contained in this Agreement to be false or incorrect or of any change in
any statement made herein occurring prior to the Merger Closing.
11. Assignability.
Neither this Agreement nor any rights that may accrue to the Subscriber hereunder may be transferred or assigned.
12. Amendments; Waiver. This Agreement
may not be amended, modified, waived or terminated except by an instrument in writing, signed by the party against whom enforcement
of such amendment, modification, waiver, or termination is sought, and no modification, waiver or amendment of this Agreement may
be agreed or otherwise consented to by the Company without the prior written consent of LHC and Landsea.
13. Additional
Information. The Company may request from the Subscriber such additional information as the Company may deem necessary to evaluate
the eligibility of the Subscriber to acquire the Offered Shares, and the Subscriber shall provide such information as may reasonably
be requested, to the extent readily available and to the extent consistent with its internal policies and procedures.
14. Binding
Effect. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and
their heirs, successors and assigns, and the agreements, representations, warranties and acknowledgments contained herein shall
be deemed to be made by and be binding upon such heirs, executors, administrators, successors, legal representatives and assigns.
This Agreement does not confer any rights or remedies upon any person or entity other than the parties hereto and their heirs,
successors and permitted assigns; provided, however, that notwithstanding anything to the contrary herein, the Company
and the Subscriber acknowledges that money damages would not be an adequate remedy at Law if the Subscriber fails to perform in
any material respect any of its obligations hereunder and accordingly agree that each party, in addition to any other remedy to
which it may be entitled at Law or in equity, shall be entitled to seek (in addition to any other remedy to which such party is
entitled at law, in equity, in contract, in tort or otherwise) an injunction or similar equitable relief restraining such party
from committing or continuing any such breach or threatened breach or to seek to compel specific performance of the obligations
of any other party under this Agreement, without the posting of any bond, in accordance with the terms and conditions of this Agreement
in any court of the United States or any State thereof having jurisdiction, and if any action should be brought in equity to enforce
any of the provisions of this Agreement, none of the parties hereto shall raise the defense that there is an adequate remedy at
Law.
15. Agreement.
This Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties, with respect to the subject matter hereof. The parties hereto acknowledge
and agree that each of LHC and Landsea has relied on this Agreement and, accordingly, that each of LHC and Landsea is an express
third party beneficiary of this Agreement entitled to the rights and benefits hereunder and to enforce the provisions hereof as
if it was a party hereto. This Agreement shall not confer any rights or remedies upon any person other than the parties hereto,
LHC and Landsea, and each of their respective successors and assigns. In addition, each of the parties hereto further acknowledges
and agrees that each Placement Agent is a third-party beneficiary of the representations and warranties of the respective parties
contained in Section 5 and Section 6 of this Agreement. This Agreement constitutes a single agreement between the Company and the
Subscriber and shall not be deemed to create any joint liability with any other subscriber under the FPAs.
16. Governing
Law. This Agreement and any claims or causes of action hereunder based upon, arising out of or related to this Agreement (whether
based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of
this 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.
17. Jurisdiction. Each party hereto
irrevocably submits to the exclusive jurisdiction of the federal courts whose districts encompass any part of the District of Delaware
or the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware lacks jurisdiction, then
in the applicable Delaware state court) solely in respect of the interpretation and enforcement of the provisions of this Agreement
and the documents referred to in this Agreement and in respect of the transactions contemplated hereby, and hereby waives, and
agrees not to assert, as a defense in any action, suit or proceeding for interpretation or enforcement hereof or any such document
that is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or
that venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts,
and the parties hereto irrevocably agree that all claims with respect to such action, suit or proceeding shall be heard and determined
by such a Delaware state or federal court. The parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with
such action, suit or proceeding to the address at the signature page herein or in such other manner as may be permitted by law
shall be valid and sufficient service thereof.
18. Waiver of Jury Trial. Each party
acknowledges and agrees that any controversy which may arise under this Agreement or the transactions contemplated hereby is likely
to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any right
such party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this 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) such party understands and has considered the implications of the foregoing waiver;
(iii) such party makes the foregoing waiver voluntarily and (iv) such party has been induced to enter into this Agreement by, among
other things, the mutual waiver and certifications in this Section 18.
19. Severability.
If any provision of this Agreement or the application thereof to the Subscriber or any circumstance shall be held invalid or unenforceable
to any extent, the remainder of this Agreement and the application of such provision to other subscriptions or circumstances shall
not be affected thereby and shall be enforced to the greatest extent permitted by Law.
20. Construction.
The headings in this Agreement are inserted for convenience and identification only and are not intended to describe, interpret,
define, or limit the scope, extent or intent of this Agreement or any provision hereof. The rule of construction that an agreement
shall be construed strictly against the drafter shall not apply to this Agreement.
21. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which together shall be deemed to be one and the same agreement. A facsimile or other electronic
transmission (including by electronic mail or in .pdf) of this signed Agreement shall be legal and binding on all parties hereto.
22. Counsel.
The Subscriber hereby acknowledges that the Company and its counsel represent the interests of the Company and not those of the
Subscriber in any agreement (including this Agreement) to which the Company is a party.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement, as of the date first written above.
LF CAPITAL ACQUISITION CORP.
By: _______________________________
Name:
Title:
LEVEL FIELD CAPITAL LLC
By: ________________________________
Name:
Title:
[Signature
Page to Forward Purchase and Subscription Agreement]
IN WITNESS WHEREOF,
the undersigned Subscriber hereby executes, delivers, joins in and agrees to be bound by the Forward Purchase and Subscription
Agreement by and among LF Capital Acquisition Corp, Level Field Capital LLC and the Subscriber (as defined therein) to which this
Signature Page is attached as a Subscriber thereunder, which, together with all counterparts of such agreements and signature
pages of other parties to such agreements, shall constitute one and the same document in accordance with the terms of such agreements.
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Purchase Allocation: $[________]
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Name
of Investor:
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State/Country of Formation or Domicile:
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By:
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Name:
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Title:
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Name
in which Offered Shares are to be registered (if different):
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Date: _______________, 2020
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Investor’s
EIN:
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Business
Address-Street:
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Mailing Address-Street (if different):
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City,
State, Zip:
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City, State, Zip:
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Attn:__________________
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Attn:__________________
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Telephone
No.:
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Telephone No.:
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Facsimile
No.:
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Facsimile No.:
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[Signature
Page to Forward Purchase and Subscription Agreement]
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE SUBSCRIBER
A. QUALIFIED
INSTITUTIONAL BUYER STATUS
(Please check the
applicable subparagraphs):
¨ We
are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).
B. INSTITUTIONAL
ACCREDITED INVESTOR STATUS
(Please check the
applicable subparagraphs):
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¨
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We
are an “accredited investor” (within the meaning of Rule 501(a) under
the Securities Act. for one or more of the following reasons (Please check the applicable
subparagraphs):
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¨
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We
are a bank, as defined in Section 3(a)(2) of the Securities Act or any savings and
loan association or other institution as defined in Section 3(a)(5)(A) of the Securities
Act, whether acting in an individual or a fiduciary capacity.
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¨
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We
are a broker or dealer registered under Section 15 of the Securities Exchange Act
of 1934, as amended.
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¨
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We
are an insurance company, as defined in Section 2(13) of the Securities Act.
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¨
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We
are an investment company registered under the Investment Company Act of 1940 or a business
development company, as defined in Section 2(a)(48) of that act.
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¨
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We
are a Small Business Investment Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of 1958.
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¨
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We
are a 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 the plan has total assets in excess of $5 million.
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¨
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We
are an employee benefit plan within the meaning of the Employee Retirement Income Security
Act of 1974, if the investment decision is being made by a plan fiduciary, as defined
in Section 3(21) of such act, and the plan fiduciary is either a bank, a savings
and loan association, an insurance company, or a registered investment adviser, or if
the employee benefit plan has total assets in excess of $5 million, or a self-directed
plan with investment decisions made solely by persons that are accredited investors.
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¨
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We
are a private business development company, as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940.
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¨
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We
are a corporation, Massachusetts or similar business trust, or partnership, or an organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended,
that was not formed for the specific purpose of acquiring the Securities, and that has
total assets in excess of $5 million.
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¨
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We
are a trust with total assets in excess of $5 million not formed for the specific purpose
of acquiring the Securities, whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) under the Securities Act.
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¨
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We
are an entity in which all of the equity owners are accredited investors.
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C. ACCREDITED INVESTOR STATUS
(Please
check the applicable subparagraphs):
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o
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The Subscriber is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act for one or more of the following reasons:
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o
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The Subscriber is a bank, as defined in Section 3(a)(2) of the Securities Act or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in an individual or a fiduciary capacity.
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o
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The Subscriber is a broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended.
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o
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The Subscriber is an insurance company, as defined in Section 2(13) of the Securities Act.
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o
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The Subscriber is an investment company registered under the Investment Company Act of 1940 or a business development company, as defined in Section 2(a)(48) of that act.
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o
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The Subscriber is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
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o
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The Subscriber is a 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 the plan has total assets in excess of $5 million.
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o
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The Subscriber is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, if the investment decision is being made by a plan fiduciary, as defined in Section 3(21) of such act, and the plan fiduciary is either a bank, an insurance company, or a registered investment adviser, or if the employee benefit plan has total assets in excess of $5 million.
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o
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The Subscriber is a private business development company, as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
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o
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The Subscriber is a corporation, Massachusetts or similar business trust, limited liability company, or partnership, or an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that was not formed for the specific purpose of acquiring the Securities, and that has total assets in excess of $5 million.
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o
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The Subscriber is a trust with total assets in excess of $5 million not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act.
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o
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The Subscriber is a director or executive officer of the Company.
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o
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The Subscriber is a natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his or her purchase exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence must not be included as an asset; (b) indebtedness secured by the person’s primary residence up to the estimated fair market value of the primary residence must not be included as a liability (except that if the amount of such indebtedness outstanding at the time of calculation 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 must 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 residence must be included as a liability.
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The Subscriber is a 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 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.
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The Subscriber is an entity in which all of the equity owners are accredited investors meeting one or more of the above tests.
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D. AFFILIATE
STATUS
(Please
check the applicable box)
THE SUBSCRIBER:
¨ is:
¨ is
not:
an
“affiliate” (as defined in Rule 144 under the Securities Act) of the Company, the Merger Sub, LHC or Landsea,
or acting on behalf of an affiliate of the Company, the Merger Sub, LHC or Landsea.
This
page should be completed by the Subscriber and constitutes a part of the Agreement.
