EXHIBIT 2.3
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
By and Among
SMARTRENT, INC.,
as Buyer
ATLAS MERGER CORP.,
as Merger Sub
SIGHTPLAN HOLDINGS, INC.,
as the Company
and
Joseph Westlake,
solely in his capacity as the Representative
Dated as of March 21, 2022
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TABLE OF CONTENTS
| Page |
Article I DEFINITIONS | 1 |
Article II THE MERGER | 16 |
2.1 The Merger | 16 |
2.2 Effective Time; Closing. | 16 |
2.3 Effect of the Merger. | 17 |
2.4 Certificate of Incorporation and Bylaws of Surviving Corporation. | 17 |
2.5 Effect of Merger on the Capital Stock of the Constituent Corporations. | 17 |
2.6 Treatment of Company Options. | 19 |
2.7 Payments at Closing. | 19 |
2.8 Merger Consideration Adjustment | 21 |
2.9 Payment Procedures and Mechanics. | 23 |
2.10 Representative Amount. | 24 |
2.11 Dissenting Shares. | 25 |
Article III REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY GROUP | 25 |
3.1 Organization and Qualification; Subsidiaries | 25 |
3.2 Authorization of Agreement. | 26 |
3.3 Capitalization. | 26 |
3.4 Non-contravention. | 27 |
3.5 Financial Statements; Internal Accounting Controls. | 28 |
3.6 No Undisclosed Liabilities. | 29 |
3.7 Subsequent Events; No Company Material Adverse Effect. | 29 |
3.8 Legal Compliance. | 31 |
3.9 Tax Matters | 32 |
3.10 Real Property. | 34 |
3.11 Personal Property. | 35 |
3.12 Intellectual Property; Privacy Laws; Company IT Systems. | 35 |
3.13 Contracts. | 37 |
3.14 Litigation. | 39 |
3.15 Employee Benefits. | 39 |
3.16 Environmental Matters. | 41 |
3.17 Labor and Employment Matters. | 41 |
3.18 Insurance Policies. | 42 |
3.19 Affiliated Transactions. | 43 |
3.20 Material Customers and Material Suppliers. | 43 |
3.21 Accounts Receivable. | 43 |
3.22 Bank Accounts; Powers of Attorney. | 43 |
3.23 Sufficiency of Assets. | 44 |
3.24 Books and Records. | 44 |
3.25 Brokers’ Fees. | 44 |
3.26 No Other Representations and Warranties. | 44 |
Article IV REPRESENTATIONS AND WARRANTIES CONCERNING BUYER AND MERGER SUB | 44 |
4.1 Organization and Qualification | 44 |
4.2 Ownership and Interim Operations of Merger Sub | 44 |
4.3 Authorization of Agreement | 45 |
4.4 Non-contravention. | 45 |
4.5 Brokers’ Fees. | 45 |
4.6 Litigation. | 45 |
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4.7 Sufficient Funds. | 45 |
4.8 Non-Reliance. | 46 |
Article V CONDUCT PRIOR TO THE CLOSING | 46 |
5.1 Conduct of Business. | 46 |
5.2 Access and Information | 48 |
Article VI ADDITIONAL AGREEMENTS | 48 |
6.1 Appropriate Actions; Consents; Filings. | 48 |
6.2 Confidentiality; Public Announcements | 49 |
6.3 Exclusivity | 49 |
6.4 Company Stockholder Approval. | 50 |
6.5 Employee Matters. | 50 |
6.6 R&W Insurance Policy | 51 |
6.7 Indemnification of Director and Officers; Tail Insurance Policies. | 51 |
6.8 Ratification of Prior Actions. | 52 |
6.9 Representative. | 52 |
6.10 Release | 53 |
6.11 Certain Acknowledgments | 53 |
6.12 Repaid Debt | 54 |
6.13 Transfer Taxes | 54 |
6.14 Termination of Company Plans | 54 |
6.15 280G Waiver and Consent | 54 |
6.16 Release of Retention and Contingent Executive Merger Consideration Escrow Amounts | 55 |
Article VII CONDITIONS TO CLOSING | 56 |
7.1 Conditions to Obligations of Each Party | 56 |
7.2 Additional Conditions to Obligations of Buyer and Merger Sub | 56 |
7.3 Additional Conditions to Obligations of the Company | 57 |
7.4 Frustration of Closing Conditions | 58 |
Article VIII SURVIVAL OF REPRESENTATIONS AND WARRANTIES | 58 |
Article IX TERMINATION, AMENDMENT AND WAIVER | 59 |
9.1 Termination | 59 |
9.2 Effect of Termination | 59 |
Article X GENERAL PROVISIONS | 60 |
10.1 Notices | 60 |
10.2 Interpretation | 61 |
10.3 Severability | 61 |
10.4 Entire Agreement | 61 |
10.5 Fees and Expenses | 61 |
10.6 Amendments and Waivers | 62 |
10.7 Failure or Indulgence Not Waiver | 62 |
10.8 Company Disclosure Schedule | 62 |
10.9 Assignment | 63 |
10.10 Parties in Interest | 63 |
10.11 Specific Performance. | 63 |
10.12 Governing Law; Exclusive Jurisdiction. | 64 |
10.13 Counterparts | 65 |
10.14 Waiver of Conflicts Regarding Representation. | 65 |
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INDEX OF EXHIBITS
Exhibit Description
Exhibit A Form of Support and Restrictive Covenants Agreement
Exhibit B Form of Stockholder Written Consent
Exhibit C Form of Certificate of Merger
Exhibit D Form of Paying Agent Agreement
Exhibit E Form of Letter of Transmittal
Exhibit F Form of Escrow Agreement
Annex A Net Working Capital Schedule
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the “Agreement”) is made and entered into as of March 21, 2022, by and among (a) SmartRent, Inc., a Delaware corporation (“Buyer”), (b) Atlas Merger Corp., a Delaware corporation and a wholly-owned Subsidiary of Buyer (“Merger Sub”), (c) SightPlan Holdings, Inc., a Delaware corporation (the “Company”), and (d) Joseph Westlake, solely in his capacity as the representative of the Company Securityholders (the “Representative”). Unless the context otherwise requires, each of Buyer, Merger Sub, the Company and the Representative are referred to herein individually as a “Party” and collectively, as the “Parties”.
RECITALS
WHEREAS, the boards of directors of Buyer, Merger Sub and the Company each determined that it is advisable and in the best interests of their respective securityholders for Buyer to acquire the Company upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company (the “Company Board”) unanimously (a) approved this Agreement, the Merger and the other transactions contemplated by this Agreement and the other Transaction Documents (collectively with the Merger, the “Transactions”), and (b) determined, subject to the terms of this Agreement, to recommend that the Company Stockholders adopt and approve this Agreement and approve the Merger;
WHEREAS, the Parties have determined that the Merger shall be effected by merging Merger Sub with and into the Company (with the Company being the surviving entity) such that upon consummation of the Merger, the Company will be a wholly-owned Subsidiary of Buyer;
WHEREAS, as a condition and inducement to Buyer’s and Merger Sub’s willingness to enter into this Agreement, the Company will, within one (1) Business Day following the execution hereof, deliver executed written consents in accordance with Section 228(a) of the General Corporation Law of the State of Delaware (the “Delaware Act”), dated as of the date hereof, duly executed by Company Stockholders who collectively own at least (i) ninety percent (90%) of the outstanding shares of Company Common Stock, and (ii) one hundred percent (100%) of the outstanding shares of Company Preferred Stock, adopting this Agreement and approving the Transactions, including the Merger, in accordance with the Delaware Act and Company Charter Documents (as defined below), in each case as in effect as of immediately prior to the date hereof; and
WHEREAS, concurrently with the execution of this Agreement, as a condition and inducement to Buyer’s and Merger Sub’s willingness to enter into this Agreement, the Support Agreement Parties (as defined below) have executed and delivered the Support and Restrictive Covenants Agreements (as defined below).
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, the Parties agree as follows:
DEFINITIONS
For all purposes of this Agreement, the following terms shall have the following respective meanings:
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“Accounting Firm” has the meaning set forth in Section 2.8(d).
“Accounts Receivable” has the meaning set forth in Section 3.21.
“Acquisition Engagement” has the meaning set forth in Section 10.14.
“Acquisition Proposal” means (i) any merger, liquidation, recapitalization, consolidation or other business combination involving the Company, (ii) any issuance by the Company of more than fifty percent (50%) of its capital stock or (iii) any acquisition of all or substantially all of the consolidated total assets of the Company Group, in each case, other than the Transactions.
“Actual Cash” has the meaning set forth in Section 2.8(b).
“Actual Debt” has the meaning set forth in Section 2.8(b).
“Actual Merger Consideration” has the meaning set forth in Section 2.8(b).
“Actual Net Working Capital” has the meaning set forth in Section 2.8(b).
“Actual Transaction Expenses” has the meaning set forth in Section 2.8(b).
“Adjustment Escrow Amount” means Eight Hundred Fifty Thousand Dollars ($850,000).
“Affidavit” has the meaning set forth in Section 2.9(b).
“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.
“Agreed Accounting Principles” means GAAP consistently applied throughout the periods covered thereby, except as set forth on Schedule I of the Company Disclosure Schedule.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“AML Laws” has the meaning set forth in Section 3.8(d).
“Annual Financial Statements” has the meaning set forth in Section 3.5(a).
“Applicable Preference Amount” means the Series A Per Share Liquidation Preference and the Series B Per Share Liquidation Preference, as applicable.
“Attorney-Client Communications” has the meaning set forth in Section 10.14.
“Balance Sheet Date” has the meaning set forth in Section 3.5(a).
“Base Merger Consideration” means One Hundred Thirty-Five Million Dollars ($135,000,000).
“Broker” means SEG Capital Advisors, L.L.C.
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“Business” means the business of the Company as conducted as of the date hereof, including providing software solutions for multi-family maintenance and services related to the same, including (without limitation) a real estate operating platform that offers automated answering, resident engagement, field service and maintenance task management software, inspections management software, and due diligence and audit management software to real estate owners and managers.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions located in Atlanta, Georgia or Scottsdale, Arizona are authorized or obligated by Law or executive order to close.
“Buyer” has the meaning set forth in the preamble to this Agreement.
“Buyer Certificate” has the meaning set forth in Section 2.8(b).
“Buyer Representatives” has the meaning set forth in Section 5.2.
“CARES Act” has the meaning set forth in Section 3.9(p).
“Cash” means all cash, cash equivalents (including money market accounts, money market funds, money market instruments, certificates of deposit and demand deposits) and marketable securities of the Company Group, determined on a consolidated basis in accordance with the Agreed Accounting Principles. For the avoidance of doubt, “Cash” shall be calculated net of all restricted cash and issued but uncleared checks and drafts issued by the Company Group and shall include all checks and wire transfers and drafts deposited or available for deposit for the account of the Company Group.
“Certificate” has the meaning set forth in Section 2.9(b).
“Certificate of Merger” has the meaning set forth in Section 2.2.
“Close Family Member” means a parent, grandparent, child or sibling, whether by blood or marriage, or a spouse or civil union partner.
“Closing” has the meaning set forth in Section 2.2.
“Closing Balance Sheet” has the meaning set forth in Section 2.8(b).
“Closing Date” has the meaning set forth in Section 2.2.
“Closing Payment” means (a) the Estimated Merger Consideration, less (b) the Option Consideration, less (c) the aggregate exercise price of all Vested In-the-Money Options outstanding immediately prior to the Effective Time (to the extent cancelled), less (d) the Escrow Amount, less (e) the Representative Amount.
“Closing Statement” has the meaning set forth in Section 2.7(a).
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Company” has the meaning set forth in the preamble to this Agreement.
“Company Approvals” means, any consent, license, permit, approval, waiver or authorization or order of, filings with or any notification to any third-Person or Governmental Authority required as a result of the Transactions.
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“Company Board” has the meaning set forth in the recitals to this Agreement.
“Company Capital Stock” means the Company Common Stock and Company Preferred Stock, collectively.
“Company Charter Documents” means the Restated Certificate and the bylaws of the Company.
“Company Common Stock” means the common stock, $0.0001 par value per share, of the Company.
“Company Disclosure Schedule” has the meaning set forth in Article III.
“Company Group” means the Company and each of its Subsidiaries, collectively.
“Company Indemnified Party” has the meaning set forth in Section 6.7.
“Company Intellectual Property” means all Intellectual Property owned or purported to be owned by the Company Group.
“Company IT Systems” means all Software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) by the Company.
“Company Material Adverse Effect” means any change, effect, event, occurrence or development that has had, or would reasonably be expected to have, a materially adverse effect on either (a) the business, assets, results of operations or financial condition of the Company Group, taken as a whole; or (b) the ability of the Company Group to consummate the Transactions; provided, however, that the following and the effects of the following shall not be deemed, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been, a Company Material Adverse Effect: (i) any general condition affecting the industries or markets in which the Company Group conducts operations or the economy in any of the countries or jurisdictions in which the Company Group conducts operations which do not affect the Company Group in a materially disproportionate and adverse manner as compared to other companies in the Company Group’s industry; (ii) general economic, capital market, financial, political or regulatory conditions (including any changes therein), worldwide, national, international, or in any particular region, if such conditions do not affect the Company Group in a materially disproportionate and adverse manner as compared to other companies in the Company Group’s industries; (iii) an occurrence, outbreak, escalation or material worsening of war, armed hostilities, acts of terrorism, political instability (including any impeachment proceeding of the President of the United States) or other worldwide, national or international calamity, crisis or emergency, or any governmental or other response or reaction to any of the foregoing; (iv) any fires, earthquakes, hurricanes, tornadoes, epidemics or other natural or manmade disasters; (v) any change in applicable accounting requirements or principles or interpretations or implementations thereof (including to GAAP), or any change in applicable Laws, rules or regulations or the implementation or interpretation thereof; (vi) any action taken or omissions to act by the Company Group at Buyer’s or its Affiliates’ express request or as expressly required by the terms of the Transaction Documents; (vii) any failure of the Company Group to meet its financial or operational budgets, targets or projections (it being understood that the facts or occurrences giving rise to such failure that are not otherwise excluded from the definition of “Company Material Adverse Effect” may be taken into account when determining whether there has been a Company Material Adverse Effect); (viii) any matter arising from or related to matters disclosed with reasonable specificity in the Company Disclosure
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Schedule; (ix) any local, national, or global communicable disease outbreak, epidemic or pandemic or other national or international calamity, crisis or emergency, public and/or global health emergency (including COVID-19 or any worsening thereof or any COVID-19 Actions or COVID-19 Measures or any change in such COVID-19 Measures or the interpretation or enforcement thereof), or any governmental or other response to any of the foregoing; and (x) any effect related to or resulting from the terms, announcement, pendency or consummation of the Transactions or execution of this Agreement or the other Transaction Documents, including any loss of customers, employees, suppliers or vendors resulting in whole or in part from the foregoing and any actions or omissions to act by customers, suppliers, vendors or employees or by reason of the Transactions, identity of Buyer or its Affiliates or any communication by Buyer or its Affiliates regarding its plans or intentions with respect to the conduct of the Business or the Surviving Corporation.
“Company Optionholders” means the holders of Company Options.
“Company Options” means all outstanding options to purchase shares of Company Common Stock granted pursuant to the Option Plan.
“Company Parties” has the meaning set forth in Section 10.14.
“Company Preferred Stock” means the Series B Preferred Stock and Series A Preferred Stock, collectively.
“Company Representatives” has the meaning set forth in Section 6.3.
“Company Securityholders” means, collectively, the Company Stockholders and Company Optionholders.
“Company Stockholder Approval” has the meaning set forth in Section 3.2(b).
“Company Stockholders” means the holders of Company Capital Stock, taken together.
“Company 401(k) Plan” has the meaning set forth in Section 6.14.
“Competition Law” shall mean any Law that is designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition, including the HSR Act.
“Confidentiality Agreement” means that certain Mutual Nondisclosure Agreement, dated as of November 22, 2021, by and between Buyer and the Company.
“Contingent Executive Merger Consideration Escrow Amount” means an amount equal to Two Million Four Hundred Fifty-One Thousand Dollars ($2,451,000).
“Contract” means any legally binding, written contract, agreement, lease, obligation, commitment or undertaking.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks.
“COVID-19 Actions” means all reasonable actions taken, planned, or planned to be taken in response to events, occurrences, conditions, circumstances, or developments arising directly or indirectly
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as a result of the COVID-19 outbreak, its impact on economic conditions, its impact on the operations of the Company, risks to the health and safety of any Person, or actions taken by Governmental Authorities or other Persons in response thereto or any escalation or material worsening of any of the foregoing or any governmental or other response or reaction to any of the foregoing.
“COVID-19 Law” means the Coronavirus Aid, Relief, and Economic Security Act of 2020, the Families First Coronavirus Response Act of 2020, the Paycheck Protection Program Flexibility Act of 2020, any U.S. presidential memorandum, executive order or similar publication or document permitting or requiring the deferral of any Taxes, and any other law intended to address the consequences of COVID-19, in each case, as may be amended or modified, together with all rules and regulations and guidance issued by any Governmental Authority.
“COVID-19 Measures” means any quarantine, ‘shelter in place,’ ‘stay at home,’ workforce reduction, social distancing, shut down, closure, sequester, safety or similar Law, Order, directive, guideline, pronouncement, or recommendation promulgated by any industry group or any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, or an industry group providing for business closures, in each case, in connection with or in response to COVID-19.
“Current Assets” means the consolidated total current assets of the Company Group, as defined by and determined in accordance with the Agreed Accounting Principles (excluding any Cash and deferred Tax assets) applied consistently with the principles, practices, estimation techniques and assumptions applied in the preparation of the Financial Statements and the policies and procedures (if any) set forth on the Net Working Capital Schedule and, in the event of any conflict between such policies and procedures and the Agreed Accounting Principles, the policies and procedures set forth on Net Working Capital Schedule shall control.
“Current Liabilities” means the consolidated total current liabilities of the Company Group (including, for the avoidance of doubt, deferred revenue), as defined by and determined in accordance with the Agreed Accounting Principles applied consistently with the principles, practices, estimation techniques and assumptions applied in the preparation of the Financial Statements and the policies and procedures (if any) set forth on the Net Working Capital Schedule and, in the event of any conflict between such policies and procedures and the Agreed Accounting Principles, the policies and procedures set forth on Net Working Capital Schedule shall control; provided, that Current Liabilities shall exclude (a) liabilities underlying outstanding checks or funds in transit that are excluded from the calculation of Cash, (b) any Debt, (c) Transaction Expenses and (d) deferred Tax liabilities; provided, further, that any other amount payable from the Merger Consideration that would otherwise be considered a Current Liability (including the Option Consideration) shall not be included as a Current Liability (the purpose and intent of the foregoing to avoid double-counting). Any Tax liabilities included in the computation of Current Liabilities shall be calculated on a basis consistent with past practices of the Company Group in filing Tax Returns and paying Taxes and shall also include an estimate of Tax liabilities, if any, related to the operating results of the Company Group for the year ended December 31, 2021.
“Debt” means, without duplication, any liability of any member of the Company Group in respect of the following: (a) indebtedness for borrowed money or evidenced by notes, bonds, debentures or similar instruments; (b) guarantees of the obligations described in the foregoing clause (a) above of any other Person; (c) all accrued interest on the foregoing; (d) all obligations under leases required to be capitalized in accordance with GAAP (for the sake of clarity, it being understood that ASC 842 shall be disregarded for purposes of this definition); (e) all obligations for deferred purchase price or deferred rent for property, equity interests, assets or rights, or earn-out or similar contingent payment obligations (whether or not currently payable and to the fullest extent payable); (f) any indebtedness and liabilities and related costs or
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obligations under any interest rate protection agreements, foreign currency exchange agreements, forward contracts or other interest, exchange rate or commodity hedging or swap agreements; and (g) letters of credit issued on behalf of such Person (excluding any undrawn letters of credit); provided, however, that, for purposes of clarity, notwithstanding anything to the contrary herein, “Debt” shall not include any (i) Transaction Expenses, (ii) Current Liabilities, (iii) deferred revenue, (iv) undrawn letters of credit, performance bonds, bankers acceptances, indemnities and similar obligations entered into in the ordinary course of business, (v) Tax liabilities, (vi) indebtedness owing from any member of the Company Group to any other member of the Company Group, or (vii) any items of the nature described above incurred by Buyer or its Affiliates prior to or following the Closing.
“Delaware Act” has the meaning set forth in the recitals to this Agreement.
“Delaware Courts” has the meaning set forth in Section 10.12(b).
“Dissenting Shares” has the meaning set forth in Section 2.11(a).
“Distribution Procedures” means, with respect to the applicable payment to be made hereunder, payment to the Company Stockholders and, with respect to the Company Optionholders, payment to the Company for distribution to Company Optionholders, in each case, in accordance with the amounts set forth on the Closing Statement (or any subsequent payment instruction executed by the Representative); provided the payments to the Company Optionholders shall be in accordance with the Company’s payroll practices and shall be subject to withholding in accordance with the terms hereof.
“Downward Net Working Capital Adjustment” means the amount, if any, by which the Estimated Net Working Capital or Actual Net Working Capital, as the case may be, is less (more negative) than the Target Net Working Capital.
“Effective Time” has the meaning set forth in Section 2.2.
“Employee” means any employee of the Company or any of its Subsidiaries.
“Employee Plan” means any plan, program, policy, arrangement or Contract, whether or not reduced to writing, and whether covering a single individual or a group of individuals, that is (a) an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, (b) an employee pension benefit plan within the meaning of Section 3(2) of ERISA, (c) an equity bonus, equity purchase, equity option, restricted equity, equity appreciation right or similar equity-based plan or (d) any other deferred-compensation, retirement, severance, welfare-benefit, reimbursement, bonus, profit-sharing, incentive or fringe-benefit plan, program or arrangement, in each case, whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA.
“Enforceability Exceptions” has the meaning set forth in Section 3.2(a).
“Environmental Laws” means any applicable Laws that pertain to the protection of the environment, protection of public health and safety, or protection of worker health and safety, or that pertain to the handling, use, manufacturing, processing, storage, treatment, transportation, discharge, release, emission, disposal, re-use or recycling of hazardous materials, including the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601, et seq., as amended, the federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended, the European Union RoHS Directive and the Waste Electrical and Electronic Equipment Directive.
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“Equity Interest” means, with respect to any Person, (a) any capital stock, partnership or membership interest, unit of participation or other similar interest (however designated) in such Person, and (b) any option, warrant, purchase right, conversion right, exchange right or other Contract that would entitle any other Person to acquire any such interest in such Person or otherwise entitle any other Person to share in the equity, profits, earnings, losses or gains of such Person (including equity appreciation, phantom equity, profit participation or other similar rights).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with the Company as a “single employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“Escrow Account” means the account into which the Escrow Funds are deposited.
“Escrow Agent” means Citibank, N.A.
“Escrow Agreement” means that certain Escrow Agreement, dated as of the Closing Date, entered into by and among Buyer, the Representative and the Escrow Agent, in substantially the form attached hereto as Exhibit F, subject to any administrative changes as may be required by the Escrow Agent.
“Escrow Amount” means the sum of (a) the Adjustment Escrow Amount, (b) the Retention Escrow Amount, and (c) the Contingent Executive Merger Consideration Amount.
“Escrow Funds” means the funds maintained from time to time in the Escrow Account established pursuant to the Escrow Agreement, including any interest earned thereon (which funds initially shall be equal to the Escrow Amount and shall be disbursed and released in accordance with the terms and conditions of this Agreement and the Escrow Agreement).
“Estimated Cash” has the meaning set forth in Section 2.8(a).
“Estimated Debt” has the meaning set forth in Section 2.8(a).
“Estimated Merger Consideration” means (a) the Base Merger Consideration, (b) plus (i) all Estimated Cash, (ii) the Upward Net Working Capital Adjustment (if any) and (iii) the aggregate exercise price of all Vested In-the-Money Options outstanding immediately prior to the Effective Time (to the extent cancelled), and (c) less (i) the Estimated Transaction Expenses, (ii) the Estimated Debt, and (iii) the Downward Net Working Capital Adjustment (if any).
“Estimated Net Working Capital” has the meaning set forth in Section 2.8(a).
“Estimated Transaction Expenses” has the meaning set forth in Section 2.8(a).
“FCPA” has the meaning set forth in Section 3.8(e).
“Final Merger Consideration” has the meaning set forth in Section 2.8(e).
“Financial Statements” has the meaning set forth in Section 3.5(a).
“Fraud”, with respect to the Company, means actual and intentional fraud with respect to the making of the representations and warranties expressly set forth in Article III with actual knowledge of
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breach when the related representations and warranties were made with the express intention that a party to this Agreement would rely thereon to its detriment.
“Fully-Diluted Capitalization” means the sum of (without duplication) (a) the aggregate number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time on an as converted basis and (b) the aggregate number of shares of Company Common Stock issuable upon exercise of all In-the-Money Company Options outstanding as of immediately prior to the Effective Time.
“GAAP” means generally accepted accounting principles in effect in the United States.
“Governing Documents” means, with respect to any business entity, all documents by which such entity established its legal existence or which govern its internal corporate affairs, including its certificate of incorporation, articles of organization, limited partnership agreement, operating agreement, limited liability company agreement, bylaws and any other governing document, as applicable, of such entity.
“Governmental Authority” means any court, administrative agency, commission or other United States, federal, national, provincial, state, local, foreign or other governmental authority, instrumentality, agency or commission, in each case, to the extent the same has jurisdiction over the Person, assets or property in question.
“Government Official” means any officer, director or employee of any Governmental Authority. Without limiting the foregoing, “Government Official” includes any government officer, director or employee, any officer, director or employee of any government-controlled entity or public international organization, any officer, director or employee of a government-owned or -controlled (in whole or in part) business, corporation, organization or entity, any Person acting in an official capacity for or on behalf of any Governmental Authority or any political party, party official or candidate for public office.
“Health Care Reform Laws” has the meaning set forth in Section 3.15(j).
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder.
“In-the-Money Company Options” means all vested Company Options that are outstanding immediately prior to the Effective Time with an exercise price per share of Company Common Stock that is less than the Residual Per Share Merger Consideration.
“Insurance Policies” has the meaning set forth in Section 3.18.
“Intellectual Property” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction worldwide (a) issued patents and patent applications (including provisional and non-provisional, continuations, continuations-in-part, divisionals, renewals, reissues, reexaminations, and extensions thereof), inventions, whether patentable or not, and whether reduced to practice or not, and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) (“Patents”); (b) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of any of the foregoing, and moral rights (“Copyrights”); (c) mask works; (d) trademarks, service marks, brands, certification marks, logos, Internet domain names, URLs, associated web addresses, websites and web pages, social media accounts and handles and content and data thereon or relating thereto, logos, trade names and trade dress, corporate names and other source indicators, and symbolized by, and all common law marks, registrations, applications for registration, and renewals of, any of the foregoing and all goodwill related thereto, (“Trademarks”); (e) trade secrets, know-how, inventions (whether or not patentable), discoveries,
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improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential information and proprietary information and all rights therein (“Trade Secrets”); (f) Software; and (g) all other intellectual or industrial property and proprietary rights.
“Interim Balance Sheet” has the meaning set forth in Section 3.5(a).
“Interim Financial Statements” has the meaning set forth in Section 3.5(a).
“Knowledge of the Company”, “to the Company’s Knowledge” or other similar phrases means, with respect to any fact, circumstance, event or other matter in question, the actual knowledge of Joseph Westlake, Terry Danner, Helen Deer, and Daniel Polfer, after due inquiry.
“Law” or “Laws” means any applicable statute, law, ordinance, regulation, rule, writ, decree, code or rule of law of any Governmental Authority.
“Legal Proceeding” has the meaning set forth in Section 10.12(b).
“Legislation” has the meaning set forth in Section 3.8(e).
“Letter of Transmittal” has the meaning set forth in Section 2.9(b).
“Licensed Intellectual Property” means all Intellectual Property licensed by any Person to the Company Group, or that the Company Group otherwise holds any rights or interests granted by other Persons.
“Lien” means any lien, pledge, mortgage, deed of trust, security interest, charge, easement, encroachment or other similar encumbrance.
“Material Contract” has the meaning set forth in Section 3.13(a).
“Material Customers” has the meaning set forth in Section 3.20(a).
“Material Suppliers” has the meaning set forth in Section 3.20(b).
“Merger” has the meaning set forth in Section 2.1.
“Merger Consideration” means (a) the Base Merger Consideration, (b) plus (i) all Estimated Cash, (ii) the Upward Net Working Capital Adjustment (if any) and (iii) the aggregate exercise price of all Vested In-the-Money Options outstanding immediately prior to the Effective Time (to the extent cancelled), and (c) less (i) the Estimated Transaction Expenses, (ii) the Estimated Debt, and (iii) the Downward Net Working Capital Adjustment (if any) (in each case, without duplication).
“Merger Sub” has the meaning set forth in the preamble to this Agreement.
“Merger Sub Common Stock” has the meaning set forth in Section 2.5(b).
“MMM” has the meaning set forth in Section 10.14.
“Net Working Capital” means (a) Current Assets, minus (b) Current Liabilities, all as more particularly described and set forth in the Net Working Capital Schedule.
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“Net Working Capital Certificate” means a certificate delivered by an officer of the Company, certifying the Estimated Net Working Capital, Estimated Cash, Estimated Transaction Expenses and Estimated Debt as set forth on the Closing Statement, and the amount, if any, by which (a) Estimated Net Working Capital exceeds the Target Net Working Capital or (b) the Estimated Net Working Capital is less than the Target Net Working Capital.
“Net Working Capital Schedule” means the schedule pursuant to which Net Working Capital is to be calculated, attached as Annex A hereto, which calculation on Annex A is based for illustrative purposes on Net Working Capital as of February 28, 2022.
“Objection Notice” has the meaning set forth in Section 2.8(c).
“OFAC” has the meaning set forth in Section 3.8(c).
“Open Source Software” means all Software and other materials that are distributed as “open source software” or under a similar licensing or distribution model, including to any license for Software that meets the “Open Source Definition” promulgated by the Open Source Initiative.
“Option Consideration” means, for each In-the-Money Company Option, the amount of cash by which (a) the Residual Per Share Merger Consideration exceeds (b) the exercise price of such In-the-Money Company Option.
“Option Plan” means the SightPlan Holdings, Inc. 2014 Incentive Stock Plan, as amended.
“Order” means any judicial or administrative interpretations, judicial or administrative orders, consent decrees, judgments and any agreement with any Governmental Authority.
“Outside Date” has the meaning set forth in Section 9.1(e).
“Party” or “Parties” has the meaning set forth in the preamble to this Agreement.
“Paying Agent Agreement” has the meaning set forth in Section 2.9(a).
“Payoff Amounts” has the meaning set forth in Section 6.12.
“Payoff Letters” has the meaning set forth in Section 6.12.
“Permit” means any permit, license, authorization, registration, franchise, approval, consent, certificate, variance and similar right obtained, or required to be obtained for the conduct of the Company Group’s business as currently conducted, from any Governmental Authority.
“Permitted Liens” means: (a) Taxes, assessments and other governmental levies, fees, or charges that are (i) not due and payable as of the Closing Date or (ii) being contested by appropriate proceedings (which have been disclosed in the Company Disclosure Schedule); (b) mechanics’ Liens, workmans’ Liens and similar Liens for labor, materials, or supplies provided with respect to such real property incurred in the ordinary course of business for amounts that are (i) not delinquent and that would not, in the aggregate, have a Company Material Adverse Effect or (ii) being contested by appropriate proceedings; (c) zoning, building codes, and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon that are imposed by any Governmental Authority having jurisdiction over such real property; (d) liens for any financing secured by real property; (e) easements, covenants, conditions, restrictions and other similar matters affecting title to real property and other encroachments and title and
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survey defects that do not or would not materially impair the use or occupancy of real property in the operation of the business of the Company Group, taken as a whole; and (f) non-exclusive licenses of Intellectual Property entered into in the ordinary course of business.
“Person” means an individual or entity, including a partnership, a limited liability company, a corporation, a business association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).
“Plan” has the meaning set forth in Section 3.15(a).
“Post-Transaction Employee” has the meaning set forth in Section 6.5(a).
“Preferred Dividends” means, (a) with respect to the Series A Preferred Stock, any accrued but unpaid Series A Preferred Dividend (as defined in the Restated Certificate), if any with respect to such shares as of immediately prior to the Effective Time, and (b) with respect to the Company Preferred Stock, any declared but unpaid dividends, if any, with respect to such shares as of immediately prior to the Effective Time (subject, in each case, to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization of the applicable shares of Company Preferred Stock after the date hereof but prior to the Effective Time).
“Preferred Merger Consideration” has the meaning set forth in Section 2.5(a)(ii).
“Pro Rata Portion” means, with respect to each Company Securityholder, the applicable percentage set forth opposite the name of such Company Securityholder under the column titled “Pro Rata Portion” on the Closing Statement, which percentage shall equal a fraction, (a) the numerator of which is the portion of the Estimated Merger Consideration payable to such Company Securityholder pursuant to the terms of this Agreement and (b) the denominator of which is the Estimated Merger Consideration less the aggregate exercise price of all Vested In-the-Money Options outstanding immediately prior to the Effective Time (it being understood that the “Pro Rata Portion” of each Company Securityholder, when taken together with the “Pro Rata Portion” of each of the other Company Securityholders shall equal one hundred percent (100%)).
“Products” means any proprietary products and solutions offered for sale or otherwise distributed by or on behalf of the Company Group to any Person.
“R&W Insurance Policy” means that certain representation and warranty insurance policy issued to Buyer in connection with the execution of this Agreement.
“Real Property Leases” has the meaning set forth in Section 3.10(b).
“Reference Date” means the date that is three (3) years prior to the date of this Agreement.
“Related Person” means, with respect to any Person, any director, senior officer or trustee of such Person or other person or entity that controls or otherwise holds a direct interest in such Person; provided, that as to any Person that is publicly held, the term shall only include such controlling Persons whose holdings are required to be, and are, publicly reported.
“Released Claims” has the meaning set forth in Section 6.10.
“Repaid Debt” has the meaning set forth in Section 6.12.
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“Representative” shall have the meaning set forth in the preamble to this Agreement.
“Representative Amount” means Fifty Thousand Dollars ($50,000).
“Residual Per Share Merger Consideration” means the quotient (calculated to five decimal places) obtained by dividing (a) the Residual Total Merger Consideration by (b) the sum of the Fully-Diluted Capitalization.
“Residual Total Merger Consideration” means the amount equal to (a) the Merger Consideration minus (b) the sum of the Series A Total Liquidation Preference and Series B Total Liquidation Preference, in each case, to the extent such liquidation preference is payable pursuant to Section 2.5.
“Restated Certificate” means the Amended and Restated Certificate of Incorporation of the Company as filed with the Secretary of State of the State of Delaware on October 2, 2020, as amended from time to time.
“Retention Escrow Amount” means an amount equal to Three Million Three Hundred and Eight Thousand Five Hundred and Ninety-Seven Dollars ($3,308,597).
“Sanctioned Country” has the meaning set forth in Section 3.8(c).
“Sanctioned Persons” has the meaning set forth in Section 3.8(c).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the European Union or Her Majesty’s Treasury of the United Kingdom.
“Series A Merger Consideration” has the meaning set forth in Section 2.5(a)(ii).
“Series A Per Share Liquidation Preference” means $0.9552, plus the amount of any Preferred Dividends.
“Series A Preferred Stock” means the preferred stock, $0.0001 par value per share, of the Company designated as “Series A Preferred Stock.”
“Series A Shares Outstanding” means the number of shares of Series A Preferred Stock issued and outstanding as of immediately prior to the Effective Time.
“Series A Total Liquidation Preference” means an amount equal to the product of (a) the Series A Per Share Liquidation Preference multiplied by (b) Series A Shares Outstanding.
“Series B Merger Consideration” has the meaning set forth in Section 2.5(a)(i).
“Series B Preferred Stock” means the preferred stock, $0.0001 par value per share, of the Company designated as “Series B Preferred Stock.”
“Series B Per Share Liquidation Preference” means Zero Dollars ($0).
“Series B Shares Outstanding” means the number of shares of Series B Preferred Stock issued and outstanding as of immediately prior to the Effective Time.
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“Series B Total Liquidation Preference” means an amount equal to the product of (a) the Series B Per Share Liquidation Preference multiplied by (b) Series B Shares Outstanding.
“SightPlan India” means SightPlan India Pvt. Ltd., a private limited company organized under the Laws of India.
“SightPlan India Financial Statements” has the meaning set forth in Section 3.5(a).
“SightPlan U.S. Financial Statements” has the meaning set forth in Section 3.5(a).
“Software” means (a) all software, firmware, middleware, computer programs, applications, interfaces, tools, operating systems, software code of any nature, (including all object code, source code, interpreted code, data files, rules, definitions and methodology derived from the foregoing) and any derivations, updates, enhancements and customization of any of the foregoing, together with all processes, technical data, scripts, algorithms, APIs, subroutines, techniques, operating procedures, screens, user interfaces, report formats, development tools, templates, menus, buttons, icons and user interfaces, (b) all electronic databases and data collections, and (c) all documentation, including user manuals, technical manuals, training manuals, programming comments, descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing.
“Specified Time” has the meaning set forth in Section 6.3.
“Stockholder Written Consent” shall mean the action by written consent executed by the Company Stockholders, in substantially the form attached hereto as Exhibit B, constituting the Company Stockholder Approval.
“Subsidiary” means, with respect to any Person, any corporation, partnership, trust, limited liability company, association or other business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a partnership, limited liability company, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated a majority of partnership, limited liability company, association or other business entity gains or losses or shall be or control the managing director or general partner of such partnership, limited liability company, association or other business entity.
“Support Agreement Parties” means (a) each holder of Company Preferred Stock, (b) each holder of Company Common Stock holding (together with such holder’s Affiliates) shares of Company Common Stock and/or Company Preferred Stock representing at least two percent (2%) of the issued and outstanding shares of Company Capital Stock as of the date hereof, and (c) to the extent not included in the preceding clauses (a) or (b), each of Joseph Westlake, Terry Danner, Helen Deer and Daniel Polfer.
“Support and Restrictive Covenants Agreements” means those certain Support and Restrictive Covenants Agreements, entered into by and between Buyer and each of the Support Agreement Parties in connection with the execution and delivery of this Agreement, in substantially the form attached hereto as Exhibit A.
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“Supporting Documentation” has the meaning set forth in Section 2.8(b).
“Surplus” has the meaning set forth in Section 2.8(f)(i)
“Surviving Corporation” has the meaning set forth in Section 2.1.
“Target Net Working Capital” means negative Three Hundred Twenty-Nine Thousand Twenty-Four Dollars (i.e. ($329,024)).
“Tax” means (a) any and all United States, federal, state, local or municipal, foreign or other taxes, including license, registration, payroll, employment, excise, severance, occupation, premium, windfall profits, ad valorem, environmental, capital stock, franchise, profits, payroll or employment or other withholding, health insurance, social security (or similar), unemployment, disability, real property, personal property, abandoned property, forfeitures, escheat, alternative or add-on minimum or estimated taxes (and any and all United States, federal, state, local or municipal, foreign or other fees, duties and other assessments in the nature of a tax) imposed by any Tax Authority, including any related interest, fines or penalties, (b) any liability for the payment of any amounts of the type described in clause (a) as a result of being a member of an affiliated, consolidated, combined or unitary group (including any arrangement for group or consortium relief or similar arrangement) for any period, and (c) any liability for the payment of any amounts of the type described in clauses (a) or (b) as a result of any express or implied obligation to indemnify any other person or as a result of any obligation under any agreement or arrangement with any other person with respect to such amounts and including any liability for taxes of a predecessor entity or transferor or otherwise by operation of Law.
“Tax Authority” means any Governmental Authority responsible for the imposition, administration, assessment or collection of any Tax or the administration of any Laws relating to Taxes.
“Tax Return” means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof, in each case required to be filed with any Tax Authority in connection with the imposition, administration, assessment or collection of any Tax or the administration of any Laws relating to Taxes.
“Transaction Documents” means this Agreement, the Company Disclosure Schedule, the closing certificates delivered pursuant to this Agreement, the annexes to this Agreement, the Certificate of Merger, the Paying Agent Agreement, the Escrow Agreement and all other documents, agreements, certificates and other instruments contemplated by this Agreement.
“Transaction Expenses” means, without duplication, and to the extent not paid prior to the Effective Time, (a) all third party fees, costs and expenses relating to this Agreement and the Transactions that are incurred at or prior to the Effective Time and are payable by any member of the Company Group, the Representative or any Company Securityholder to any financial advisor, broker, or finder or to any attorney, accountant, consultant or other professional that rendered services to the Company Group or such other Person in connection with this Agreement and the Transactions; (b) all liabilities for any change of control or similar bonuses payable by the Company Group to any member of the Company Group’s officers, directors, employees, consultants or contractors solely as a result of the consummation of the Transactions; (c) the employer portion of any payroll or employment Taxes associated with the payments described in clause (b) of this definition and the In-the-Money Company Options; (d) fifty percent (50%) of the filing fee (if any) required under the HSR Act; (e) one hundred percent (100%) of the premiums payable by the Company in connection with the “tail” insurance policies pursuant to and in accordance with Section 6.7; (f) fifty percent (50%) of any fees and expenses of the Escrow Agent under the Escrow Agreement; and fifty percent (50%) of any fees and expenses of the Paying Agent under the Paying Agent Agreement;
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provided, however, that notwithstanding anything to the contrary set forth herein, “Transaction Expenses” shall not include (i) any fees and costs relating to this Agreement and the Merger that are payable by any member of the Company Group for services following the Closing or by Buyer, Merger Sub or Buyer’s Affiliates in connection with the Transactions, including any financings obtained by Buyer, Merger Sub, Buyer’s Affiliates or the Company in connection herewith, (ii) any amount which is included in the calculation of Debt or Net Working Capital, or (iii) any premiums, underwriting fees or other amounts payable in connection with the R&W Insurance Policy (which amounts will be borne by Buyer).
“Transactions” has the meaning set forth in the recitals to this Agreement.
“Transfer Taxes” has the meaning set forth in Section 6.13.
“Transmittal Documents” has the meaning set forth in Section 2.9(b).
“Treasury Regulations” means the regulations of the U.S. Department of the Treasury promulgated under the Code.
“Upward Net Working Capital Adjustment” means the amount, if any, by which the Estimated Net Working Capital or Actual Net Working Capital, as the case may be, exceeds (is less negative) than the Target Net Working Capital.
“Vested In-the-Money Options” means all vested Company Options that are outstanding immediately prior to the Effective Time with an exercise price per share of Company Common Stock that is less than the Common Merger Consideration, which, for the avoidance of doubt, shall include any Company Options with an exercise price per share of Company Common Stock that is less than the Common Merger Consideration that become vested Company Options by virtue of acceleration of vesting as of immediately prior to the Effective Time.
“Waived 280G Benefits” has the meaning set forth in Section 6.15.
“2020 U.S. Tax Acts” has the meaning set forth in Section 3.9(p).
“280G Approval” has the meaning set forth in Section 6.15.
THE MERGER
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(b) Bylaws. As of the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub or the Company, the bylaws of the Surviving Corporation shall be amended and restated to read the same as the bylaws of Merger Sub, as in effect immediately prior to the Effective Time until thereafter amended in accordance with the Delaware Act, the Certificate of Incorporation of the Surviving Corporation and such bylaws; provided, however, that any references in such bylaws to the name of Merger Sub shall be amended to refer to “SightPlan Holdings, Inc.”
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REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY GROUP
The Company represents and warrants to Buyer as of the date hereof, except as set forth herein or in the disclosure schedule, dated as of the date hereof, and delivered by the Company to Buyer contemporaneously with the execution of this Agreement (the “Company Disclosure Schedule”).
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REPRESENTATIONS AND WARRANTIES CONCERNING
BUYER AND MERGER SUB
Buyer and Merger Sub hereby represent and warrant, jointly and severally, to the Company as of the date hereof and as of the Closing Date:
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CONDUCT PRIOR TO THE CLOSING
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ADDITIONAL AGREEMENTS
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CONDITIONS TO CLOSING
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SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The Parties intending to modify any applicable statute of limitations, agree that (a) all representations and warranties in this Agreement and in any certificate or instrument delivered pursuant hereto shall terminate effective as of the Closing and shall not survive the Closing for any purpose, and thereafter, there shall be no liability on the part of, nor shall any claim be made by, any Party, the Company Securityholders or any of their respective Affiliates in respect thereof, and (b) after the Closing, there shall be no liability on the part of, nor shall any claim be made by, any Party, the Company Securityholders or any of their respective Affiliates in respect of any covenant or agreement to be performed prior to the Closing. Each Party hereby agrees that its insurer(s) shall not have any subrogation rights with respect to any representation or warranty in this Agreement or any certificate delivered pursuant hereto or any covenant or agreement to be performed prior to the Closing, except in the case of Fraud. Notwithstanding the foregoing or anything herein to the contrary, nothing herein shall preclude any party from seeking to enforce, against the applicable party, any covenant or agreement that contemplates performance after the Closing.
TERMINATION, AMENDMENT AND WAIVER
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GENERAL PROVISIONS
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If to Buyer, Merger Sub or the Surviving Corporation, to:
SmartRent, Inc.
8665 E. Hartford Drive, Suite 200
Scottsdale, AZ 85255
Email: brian.roberts@smartrent.com
Attention: Brian Roberts, Chief Legal Officer
with a copy to (which shall not constitute notice):
Snell & Wilmer L.L.P.
One Arizona Center
400 E. Van Buren Street, Suite 1900
Phoenix, AZ 85004
Email: dmahoney@swlaw.com
Attention: Daniel M. Mahoney, P.C.
If to the Company (prior to the Closing), to:
SightPlan Holdings, Inc.
189 S Orange Ave #2020
Orlando, FL 32801
Email: terry.danner@projectschneider.com
Attention: Terry Danner, Chief Executive Officer
with a copy to (which shall not constitute notice):
Morris, Manning & Martin, LLP
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, GA 30326
Email: nforeste@mmmlaw.com
Attention: Nick Foreste
If to the Representative, to:
Joseph Westlake
533 Lake Ave.
Orlando, FL 32801
Email: joseph@tippinsfamily.com
with a copy to (which shall not constitute notice):
Morris, Manning & Martin, LLP
1600 Atlanta Financial Center
3343 Peachtree Road, NE
Atlanta, GA 30326
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Email: nforeste@mmmlaw.com
Attention: Nick Foreste
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IN WITNESS WHEREOF, Buyer, Merger Sub, the Company and the Representative have caused this Agreement to be executed under seal by their respective duly authorized officers as of the day and year first written above.
COMPANY: |
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SIGHTPLAN HOLDINGS, INC. |
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By: |
Name: Terry Danner |
Its: Chief Executive Officer |
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REPRESENTATIVE: |
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By: |
Name: Joseph Westlake |
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BUYER: |
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SMARTRENT, INC. |
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By: |
Name: Lucas Haldeman |
Its: Chief Executive Officer |
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MERGER SUB: |
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ATLAS MERGER CORP. |
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By: |
Name: Lucas Haldeman |
Its: President |
[Signature Page to Agreement and Plan of Merger (Project Atlas)]
Exhibit A
Form of Support and Restrictive Covenants Agreement
(See attached)
Exhibit B
Form of Stockholder Written Consent
(See attached)
Exhibit C
Form of Certificate of Merger
(See attached)
Exhibit D
Form of Paying Agent Agreement
(See attached)
Exhibit E
Form of Letter of Transmittal
(See attached)
Exhibit F
Form of Escrow Agreement
(See attached)
Annex A
Net Working Capital Schedule
4853-7832-8078.8