(i) Each of them is individually eligible to use the Schedule 13D to which this Exhibit is attached, and such Schedule 13D is filed on behalf of each of them; and
(ii) Each of them is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate.
3.7. Definitions. For purposes of this Section 3:
(a) “Conversion Discount Price” shall mean, with respect to any Qualified Financing, the per share price at which shares of Qualified Financing Securities are to be sold generally in such Qualified Financing (not including any discounts applicable as a result of the Instruments or any other convertible Instruments of the Company outstanding as of prior to such Qualified Financing) multiplied by 0.80.
(b) “Capped Price” shall mean, with respect to any Qualified Financing, the per share price implied by a fully-diluted, pre-money valuation of the Company of $1,200,000,000 (which valuation includes any increase to the option pool made prior to or at the time of such Qualified Financing and all other rights to acquire capital stock of the Company outstanding at the time of such Qualified Financing (other than the Notes and any other convertible notes of the Company outstanding as of prior to such Qualified Financing)).
4. Representations and Warranties of the Company. The Company hereby represents and warrants to each Purchaser as of the applicable Closing Date as follows:
4.1. Corporate Organization and Authority. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite corporate power to own and operate its properties and to carry on its business as now conducted and as presently proposed to be conducted.
4.2. Corporate Power. The Company has all requisite corporate power to execute and deliver this Agreement, to issue each Instrument and to carry out and perform its obligations under the terms of this Agreement.
4.3. Due Execution. The execution and delivery of this Agreement and the Instruments by the Company and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Company. This Agreement and the Instruments to be issued at such Closing have been duly executed and delivered by the Company and constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, except to the extent that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting enforcement of creditors’ rights and laws concerning equitable remedies.
4.4. Taxes. All taxes shown to be due and payable on any tax returns, any assessments imposed, and all other taxes due and payable by the Company on or before the Closing, have been paid or will be paid prior to the time they become delinquent. The Company has not been advised (i) that any of its returns, federal, state or other, have been or are being audited as of the date hereof, or (ii) of any deficiency in assessment or proposed judgment to its federal, state or other taxes. There are no taxes to be imposed upon the properties or assets of the Company, as of the date of this Agreement for which the Company had not made adequate provision.
4.5. Offering. Assuming the accuracy of the Investor’s representations set forth in Section 3 of this Agreement, the offer, sale and issuance of the securities as contemplated by this Agreement and the Instruments are or, when issued will be, exempt from the registration
requirements of the Securities Act of 1933, as amended (the “Securities Act”) and will be registered or qualified (or exempt from registration or qualification) under the registration, permit or qualification requirements of all applicable state securities laws, and will not result in a violation of the qualification or registration requirements of the any applicablestate securities laws.
4.6. Disclosure. No representation or warranty made by the Company in this Agreement, the Instrument, any annex or any exhibit delivered, or to be delivered, by or on behalf of the Company pursuant hereto contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading.
4.7. Use of Proceeds. The Company shall use the proceeds of the Instruments solely for the operations of its business, and not for any personal, family or household purpose.
4.8. Non-Contravention. The Company is not in violation of, and will not be, by virtue of entering into and performing its obligations pursuant to this Agreement and the Instrument, any material term of the Company’s Articles of Incorporation or Bylaws, or in any material respect of any provision of any material mortgage, indebtedness, indenture, contract, agreement, instrument, judgment or decree, and to its knowledge the Company is not in violation of any order, statute, rule or regulation applicable to the Company where such violation would materially and adversely affect the Company.
4.9. Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority is required in connection with the execution and delivery of this Agreement and the Instruments by the Company and the performance and consummation of the transactions contemplated hereby and thereby, except qualification or registration (or taking such action as may be necessary to secure an exemption from qualification or registration) of the offer and sale of the Instruments pursuant to applicable federal and state securities laws and Blue Sky laws.
4.10. Brokers or Finders. The Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement or the issuance of the Instrument that are in addition to any fees commissions or charges in connection with the Business Combination Agreement, the Subscription Agreement or the initial public offering of the Company.
5. Representations, Warranties and Covenants of each Purchaser. Each Purchaser represents and warrants to and covenants with the Company as follows:
5.1. Authorization. When executed and delivered by the Purchaser, and assuming execution and delivery by the Company, this Agreement will constitute a valid and binding obligation of the Purchaser, enforceable in accordance with its terms, except to the extent that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting enforcement of creditors’ rights and laws concerning equitable remedies.
5.2. Brokers and Finders. The Purchaser has not retained any investment banker, broker, or finder in connection with the transactions contemplated by this Agreement.
5.3. Investment. The Purchaser is acquiring the Instrument as well as any shares of the Qualified Financing Securities or Common Stock issuable upon conversion thereof (collectively, the “Securities”) for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the sale or distribution of any part thereof. The Purchaser has no present intention of selling, granting any participation in, or otherwise distributing any Securities. By executing this Agreement, the Purchaser further represents that it has no contract, undertaking, agreement, or arrangement with any person to sell, transfer, or grant participation to such person or to any third person, with respect to any Securities.
5.4. No Public Market. The Purchaser understands and acknowledges that the offering of the Securities pursuant to this Agreement will not be registered under the Securities Act, on the grounds that the offering and sale of securities contemplated by this Agreement are exempt from registration pursuant to one or more exemptions under the Securities Act, including without limitation the exemption provided by Section 4(a)(2) thereof, and that the Company’s reliance upon such exemption is predicated upon the Purchaser’s representations as set forth in this Agreement. The Purchaser further understands that no public market now exists for any of the securities issued by the Company and that the Company has given no assurances that a public market will ever exist for the Company’s securities.
5.5. Restricted Securities. The Purchaser understands that the Securities are “restricted securities” within the meaning of Rule l44 promulgated under the Securities Act and, as such, the Securities must be held indefinitely unless they are subsequently registered under the Securities Act or unless an exemption from the registration requirements thereof is available. The Purchaser understands that Rule 144, which permits the resale, subject to satisfaction of minimum holding periods and various other terms and conditions, of such “restricted securities” may not now apply to the Securities, in all situations, because the Company is not now required to file, and does not file, current reports under the Securities Exchange Act of 1934, as amended, and because information concerning the Company substantially equivalent to that which would be available if the Company were required to file such reports is not now publicly available.
5.6. Experience; Etc. The Purchaser represents that such Purchaser: (a) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of a prospective investment in the Instrument being purchased by the Purchaser; (b) believes that he, she or it has received all the information requested from the Company that might be necessary or appropriate for deciding whether to purchase the Instrument; (c) has had the opportunity to discuss the Company’s business, management, and financial affairs with the Company’s management; (d) has the ability to bear the economic risks of this investment; and (e) is able, without materially impairing its financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss on this investment.
5.7. Accredited Investor. The Purchaser qualifies as an “accredited investor” within the meaning of Regulation D of the rules and regulations promulgated under the Securities Act.
5.8. No Reliance. The Purchaser has not relied upon any representation or warranty by the Company or its representatives in connection with the transactions contemplated hereby other than those set forth in this Agreement. Nothing in this Agreement or the Instruments is intended or should be deemed to be tax or legal advice, and Purchaser hereby represents it has had the opportunity to consult with its tax, legal and/or other professional advisors in connection with their investment in the Instrument being purchased by such Purchaser.
5.9. “Bad Actor” Disqualification. The Purchaser hereby represents that neither it nor any of its affiliates or other related parties is a “bad actor,” as defined in Rule 506(d).
5.10. Foreign Investors. If the Purchaser is a Non-U.S. person (as defined under Rule 902(k)(2) of the Securities Act), the Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to purchase the Securities, including (i) the legal requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, conversion or transfer of the Securities. The Purchaser’s subscription and payment for and continued beneficial ownership of the Securities or any subsequent issuance of equity securities pursuant to such ownership will not violate any applicable securities or other laws of the Purchaser’s jurisdiction.Anti-Money Laundering. The Purchaser acknowledges that the Company seeks to comply with all applicable anti-money laundering and anti-boycott laws and regulations. The Purchaser’s purchase of one or more Instruments hereunder will not cause the Company to be in violation of the U.S. Bank Secrecy Act, the U.S. Money Laundering Control Act of 1986, the USA Patriot Act of 2001, the U.S. International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, the Export Administration Act, as amended, or the 1976 Tax Reform Act, as amended, or, in each case, any regulations published thereunder. Neither the Purchaser, nor any party which owns or controls such Purchaser, is subject to restrictions under any program or list administered by the Office of Foreign Assets Control under the United States Department of the Treasury.
6. Legends and Restrictions on Transfer.
6.1. Securities Act. The Securities shall bear such restrictive legends as the Company and the Company’s counsel deem necessary or advisable under applicable law or pursuant to this Agreement, including, without limitation, a legend substantially in the following form:
“THE SECURITIES REPRESENTED HEREBY AND ANY SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER THE SECURITIES OR “BLUE SKY” LAWS OF ANY JURISDICTION. SUCH SECURITIES AND ANY SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT AND THE REGISTRATION, QUALIFICATION AND FILING REQUIREMENTS OF ALL APPLICABLE JURISDICTIONS HAVE BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF LEGAL COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR THAT THE PROPOSED TRANSACTION WILL BE EXEMPT FROM REGISTRATION, QUALIFICATION AND FILING IN ALL SUCH JURISDICTIONS.”
6.2. No Transfer. No Purchaser may sell or transfer any Instrument without the prior written consent of the Company.
7. Miscellaneous.
7.1. Successors and Assigns. This Agreement shall not be assignable by the Company without the written consent of the Required Holders; provided, that a merger or consolidation to which the Company is a party shall not be considered an assignment requiring consent; and provided, further, that the Company may assign this Agreement without the consent of the other parties hereto to any individual or entity that acquires control of the stock or all or substantially all of the assets or business of the Company. This Agreement shall not be assignable by any Purchaser without the written consent of the Company. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
7.2. Survival of Representations and Warranties. All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Closings.
7.3. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
7.4. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without reference to the conflicts of law provisions thereof.
7.5. Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be delivered by hand, sent by overnight courier, facsimile or e-mail, or mailed by first class certified or registered mail, return receipt requested, postage prepaid:
(a) If to the Company:
GreenLight Biosciences, Inc.
200 Boston Ave, #3100
Medford, MA 02155
with a copy to:
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA 02210-2600
Attn: Dave Broadwin
Fax: (617) 832-7000
E-mail: DAB@foleyhoag.com
(b) If to a Purchaser, at the address set forth below the Purchaser’s name on the signature page hereto, or at such other address as may have been furnished in writing by such Purchaser to the Company.
Notices provided in accordance with this Section 7.5 shall be deemed delivered (i) upon personal delivery with signature required, (ii) one Business Day after they have been sent to the recipient by reputable overnight courier service (charges prepaid and signature required), (iii) upon confirmation of successful transmission of a facsimile message containing such notice if sent before 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m. local time of the recipient on the next Business Day if sent thereafter, (iv) if sent via e-mail, upon receipt if sent before 5 p.m., local time of the recipient, on any Business Day, as of 9 a.m. local time of the recipient on the next Business Day if sent thereafter or on a day that is not a Business Day, (v) three Business Days after deposit in the United States mail, or (vi) for delivery outside of the continental United States, three Business Days after deposit with an internationally recognized overnight courier, specifying next day delivery, with written verification of receipt. The term “Business Day” as used in this Section 7.5 shall mean any day other than Saturday, Sunday or a day on which banking institutions are not required to be open in the Commonwealth of Massachusetts.
7.6. Complete Agreement. This Agreement (including its Exhibits) constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.
7.7. Amendments and Waivers. This Agreement and the corresponding terms of each Instrument may be amended, modified or terminated, and the observance of any term of this Agreement may be waived, with respect to all parties to this Agreement (either generally or in a particular instance and either retroactively or prospectively), with the written consent of the Company and the Required Holders; provided, that no such amendment, modification or waiver shall be effective to the extent such amendment, modification or waiver adversely affects the rights of any holder of an Instrument in a manner different from those of such consenting holders (other than differences related solely to the different principal amounts or issue dates of the Instruments) without the consent of each such differently affected holder, and provided, further, that the approval of the Required Holders shall not be required for the addition of additional Purchasers as parties to this Agreement so long as the aggregate principal amount of Instruments issued at all Closings is consistent with the terms of this Agreement. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term, condition or provision.
7.8. Further Assurances. The parties agree to execute such further instruments and to take such further actions as may reasonably be necessary to carry out the intent of this Agreement.
